Definition and legal classification of curfew
A curfew refers to an official restriction imposed by authorities that comprehensively or for particular population groups prohibits staying in public spaces during specified periods. Curfews represent a significant encroachment upon fundamental rights and therefore require special legal justification and a careful balancing of competing interests.
Legal Basis for Curfews in Germany
In Germany, the possibility of imposing curfews is regulated by several legal provisions, with the specific basis depending on the reason for the measure. The relevant regulatory areas are outlined in detail below.
Infection Protection Law (IfSG)
Within the framework of the Infection Protection Act (IfSG) a curfew can be imposed as a measure to combat communicable diseases. In the context of the COVID-19 pandemic, in particular, §§ 28 and 28a IfSG have been used to authorize public authorities—especially state governments and competent agencies—to order curfews limited by time and geography.Typical forms include:
- nighttime curfews (e.g., from 10 p.m. to 5 a.m.),
- residence restrictions for certain high-risk areas,
- complete curfew orders for specific population groups.
Police Law and Hazard Prevention
Also under the police laws curfews can be imposed to protect public safety and order. State police acts contain corresponding authorizations (sections for averting serious disturbances such as breaches of the peace, riots, or significant criminal acts). Curfews may be imposed as so-called general decrees or as individual orders, in particular to avert acute danger.
Disaster Protection Law
Under the disaster protection law of the federal states, curfews may be imposed in the event of natural disasters, serious accidents, or major emergencies (§ 24 Sec. 1 Civil Protection and Disaster Relief Act – ZSKG and respective state regulations). Here, the measure serves to protect the population, public authorities, and emergency responders.
Prerequisites and Requirements for Orders
The imposition of a curfew always requires a sufficient legal basis. In addition, both formal and substantive requirements must be met:
- Concrete danger to public safety: There must be a substantiated and significant reason indicating a serious threat to legally protected interests such as life, health, or public order.
- Proportionality: The measure must be suitable, necessary, and appropriate. This means less intrusive means (e.g., mask mandates, bans on gatherings) must be considered first before resorting to this “ultima ratio” instrument.
- Principle of specificity and legal clarity: The scope in terms of time, location, and persons must be clearly defined beyond doubt. General and vague curfews are not permissible.
Procedure and Enforcement
Implementation usually takes place via general decrees and is made public (e.g., through publication in the official gazette, press releases, digital channels). Violations are mostly treated as administrative offenses, or—depending on severity—can be subject to criminal sanctions (§§ 73, 74 IfSG, police authorization laws).
Constitutional Dimensions
Curfews primarily affect the fundamental right to personal freedom (Art. 2 para. 2 sentence 2 Basic Law), general freedom of action (Art. 2 para. 1 Basic Law) as well as the right to freedom of movement and assembly (Art. 8 Basic Law). Such restrictions require strict constitutional justification and are subject to the principle of proportionality. Courts (including the Federal Constitutional Court) have subjected curfew orders to intensive judicial scrutiny during the pandemic and have criticized some blanket curfews.
Possible Exceptions
Typical exceptions to curfews include:
- performance of professional duties,
- medical emergencies and necessary doctor visits,
- fulfillment of important family obligations (e.g., caregiving, emergency childcare),
- assistance for persons in need.
European and International Perspectives
At the European level as well, for example under the European Convention on Human Rights (ECHR), restrictions on freedom of movement are subject to strict requirements. Art. 5 ECHR allows for restrictions only under narrow conditions and solely to avert danger. Under international law, curfews may be imposed in cases of national security threats or disasters, but must always remain proportionate.
Comparison with Other Countries
In various countries, curfews are sometimes handled differently, but they are generally subject to similarly high legal thresholds and judicial review.
Sanctions and Legal Remedies
Violations of curfews may, depending on state regulations, be classified as administrative offenses or even as criminal offenses. The imposition of fines is common; in severe cases, imprisonment may be threatened in addition to fines. Those affected may challenge a curfew order via administrative legal remedies (e.g., action for annulment, interim legal protection before administrative courts).
Distinction from Other Measures
Curfews should not be confused with:
- movement restrictions: allow being outdoors for particular purposes, whereas a curfew generally prohibits being outdoors.
- contact restrictions: primarily limit contact with other individuals, not necessarily being in public spaces.
Conclusion
The curfew is a particularly sensitive interference by the rule of law that may only be imposed based on statutory authority and under strict conditions. It serves the protection of health and the prevention of danger, but must always be reconciled with fundamental rights. Its imposition is subject to strict requirements and legal control by means of effective legal remedies.
Sources: Statutory texts (IfSG, state police laws, ZSKG, GG, ECHR), rulings by the Federal Constitutional Court, commentary on the respective laws
Frequently Asked Questions
When is a curfew lawful?
The lawfulness of a curfew in Germany is primarily determined by the provisions of the Infection Protection Act (IfSG), with sections 28 et seq. IfSG setting the legal framework. The prerequisite for imposing a curfew is a concrete danger to public health, often in the context of an epidemic or pandemic. Curfews may only be imposed when milder measures—such as contact restrictions or mask mandates—are insufficient to address the risk. The order must always be proportionate, i.e., suitable, necessary, and appropriate. Competent authorities (e.g., district office, regional government) are typically responsible for issuing the order; in special cases, federal or state-specific rules may apply. Judicial review through interim legal protection is possible.
What legal exceptions to a curfew exist?
Curfews regularly include legally or administratively stipulated exceptions. Frequent grounds for exceptions include performing professional activities, medical emergencies, caring for persons in need, and unpostponable court appearances. Taking pets for a walk is also often recognized as an exception. The exact exceptions are specified in the respective applicable statutory regulation, which is why affected persons are obliged to inform themselves about the rules applicable in their federal state or locality. When claiming an exception, appropriate proof (e.g., employer certificate, medical certificate) must often be carried.
What penalties may be imposed for violations of a curfew?
Breaches of a curfew can be prosecuted as administrative offenses or—in cases of intentional or repeated conduct—in certain cases as criminal offenses, in accordance with § 73 IfSG or § 74 IfSG. In administrative fine proceedings, monetary fines may be imposed, the amount of which depends on the relevant state ordinance and is usually specified in the catalogue of fines. These can range from several hundred to several thousand euros. In cases of serious violations with concrete endangerment of other persons or the public, imprisonment is also possible. Additional legal consequences, such as disciplinary or employment-related measures, may also result.
Who monitors compliance with a curfew?
Primary responsibility for monitoring and enforcing compliance with a curfew lies with the municipal regulatory authorities and the police. These conduct random and occasion-related checks in public spaces, e.g., through traffic stops, foot patrols, or controls at known meeting places. When breaches are detected, identity checks and the initiation of fine proceedings are typically carried out on site. Authorities are also entitled to request proof of exemption and, if necessary, enforce compliance with coercive measures (e.g., orders to leave the area).
Can curfew orders be challenged in court?
Individuals may challenge the imposition or application of a curfew through legal action. This is usually done through administrative legal remedies, in particular by lodging an objection or applying for interim legal protection (§§ 80, 80a Administrative Court Procedure Act) before the administrative courts. The courts will review, in particular, the proportionality of the measure and its lawfulness in the specific case. Courts have in the past both upheld and, in certain cases, revoked curfews, for example where there was insufficient need or an excessively broad and inadequately substantiated restriction.
What legal differences exist between curfews and other contact restrictions?
Legally, the curfew differs from mere contact restrictions in that it prohibits not only the number or type of permitted contacts, but generally forbids leaving one’s own home, except in expressly stated cases. While contact restrictions regulate social interaction, a curfew is a broader infringement on fundamental rights, notably the right to freedom of movement (Art. 11 Basic Law) and the general right of personality (Art. 2 para. 1 Basic Law). The legal threshold for imposing a curfew is consequently higher, requires more intensive justification, and is subject to stricter proportionality review.
Are there special legal rules for vaccinated or recovered persons during a curfew?
The issue of equal treatment for vaccinated or recovered persons has become particularly relevant during the COVID-19 pandemic. Regulations may provide exceptions from curfews for these groups; the basis for this is, for example, § 28c IfSG in conjunction with the COVID-19 Protective Measures Exceptions Ordinance (SchAusnahmV). Accordingly, vaccinated or recovered persons may be exempt from certain curfew restrictions, provided this is stipulated in the specific legal act. The precise provisions and requirements for proof (e.g., digital vaccination certificate, proof of recovery) are specified in the respective ordinances. However, a general legal entitlement exists only where it is explicitly provided by law or administrative order.
