Concept and Basics of Persons Subject to Police Duties
In German police and regulatory law, persons subject to police duties are those natural or legal persons against whom measures by the police or regulatory authorities can lawfully be directed, because they fulfill or have breached so-called police duties. The precise definition and legal classification of persons subject to these duties is determined by the police laws of the individual federal states as well as by the Federal Police Act.
The term is central to police law, as it decides who can be held responsible as the addressee of police measures in the event of a threat to public safety and order. The classification as a person subject to police duties is based on various legal grounds, in particular the so-called addressee principle.
Legal Classification in Police and Regulatory Law
Police Laws as Legal Basis
Regulations regarding persons subject to police duties are set out in the police laws of the individual federal states (e.g. § 6 PolG NRW, § 13 PolG Baden-Württemberg) as well as, for the federal police, in the Federal Police Act (§ 7 BPolG). Despite federal differences, comparable principles and categories exist nationwide.
Police Duty and Its Significance
Police duty refers to the obligation to refrain from or undertake actions to prevent or eliminate threats to public safety and order. Whoever causes such a threat or is responsible for the protected interest is the addressee of police orders.
Categories of Persons Subject to Police Duties
Authorities distinguish between numerous types of persons who are subject to police duties. The most important are:
Responsible for Conduct
A person responsible for conduct (§ 6 para. 1 PolG NRW) is someone whose actions or omissions directly cause a danger to public safety and order. This responsibility arises directly from one’s own conduct and applies both to intentional and negligent acts.
Illustrative Examples:
- The person commits an administrative offense or criminal act.
- The person fails to carry out required safety measures although under a duty to do so.
Responsible for Condition
A person responsible for condition (§ 6 para. 2 PolG NRW) is someone who has actual control over an object from which a danger emanates, regardless of whether they caused the danger themselves.
Examples:
- Owner of a dilapidated building that is at risk of collapse.
- Keeper of an animal that exhibits potentially dangerous behaviors.
Non-responsible Persons (Direct Coercion)
If neither conduct nor condition responsibility can be established, or if a hazard cannot otherwise be averted, uninvolved parties (non-responsible persons) may also be deemed subject to police duties. In these exceptional cases, the police may take measures against non-responsible persons, provided the law explicitly permits it (§ 7 PolG NRW – Recourse to non-responsible persons).
Requirements:
- No timely defense possible by responsible parties
- Legal basis exists in the police law
- Principle of proportionality must be strictly observed
Addressee Principle
The addressee principle in police and regulatory law states that police and regulatory measures must generally be directed at persons subject to police duties, that is, at those responsible for conduct or condition. Only as an exception can a measure be taken against non-responsible persons. The selection of the person to be held liable is based on the causation principle.
Legal Consequences and Duties of Persons Subject to Police Duties
Obligations to Tolerate, Act, and Refrain
Depending on the specific dangerous situation, persons subject to police duties have various obligations:
- Refrain from actions that cause a danger
- Take required measures to avert dangers
- Tolerate police measures if the obligation to act is not fulfilled in time
A breach of these obligations may lead to administrative enforcement (§§ 49 ff. VwVfG), as well as liability for costs and fees.
Liability for Costs
If persons subject to police duties do not eliminate a hazard and the police must intervene to avert it, such persons can be held liable, for example, for the costs of intervention and removal (e.g. costs for fire service deployment for an illegally parked vehicle).
Special Scenarios and Groups of Persons
Minors and Legally Incapable Persons
For persons not fully legally competent, police duty is, under certain conditions, directed at their legal representatives, such as parents or guardians.
Legal Entities and Associations of Persons
Legal entities may also be held responsible as persons subject to police duties, for instance, companies, associations, or corporations. Responsibility regularly lies with their legal representative (e.g. managing director, board).
Accomplices and Co-responsible Parties
If several persons are subject to police duties, for example in jointly caused hazards, the authority may decide at its discretion who to take action against (so-called discretionary selection).
Limits and Legal Protection
Principle of Proportionality
All police measures against persons subject to police duties must observe the principle of proportionality. The measure must be suitable, necessary, and appropriate.
Legal Remedies
Addressees of police measures have the opportunity for judicial review, in particular through the administrative court (judicial procedure under §§ 40 ff. VwGO). Both the lawfulness of the order and its enforcement can be reviewed.
Summary
Persons subject to police duties are a central element of police and regulatory law. They include both natural and legal persons to whom, depending on the cause or control of a hazard, police duties can be imposed. The legal bases are found in the police laws of the federal states and the Federal Police Act. Decisive principles are causation and the categories of responsibility: conduct and condition. In exceptional cases, non-responsible persons may also be held liable. Measures are governed by the principle of proportionality and are subject to judicial review in administrative proceedings.
Frequently Asked Questions
Who can be held liable as a person subject to police duties?
Under police law, liability of persons subject to police duties is generally determined by the relevant state regulations (e.g. § 6 PolG NRW, § 4 PolG BW or corresponding provisions of other federal states), which distinguish between those responsible for conduct, condition, and purpose. Any natural or legal person who, through their behavior, causes a danger to public safety or order is considered police liable (“disturber by conduct”). In addition, persons responsible for the condition—those who have actual control over a dangerous object (e.g. a property owner of a dilapidated building)—may also be held liable, regardless of whether they caused the danger themselves. In individual cases, “non-disturbers” (uninvolved parties) may become liable when responsibility arises from the principles of so-called police emergency law, i.e. if the actual disturbers are unreachable or not reachable in time and the danger cannot otherwise be averted. The selection and order of recourse are governed by the principle of proportionality and proper discretionary judgment of the police authorities.
How is the selection made between several potentially liable persons?
If several persons are considered responsible (“disturbers”) for a hazard, the police must exercise discretion in choosing whom to hold liable. Police law generally requires that the main responsible party or the direct disturber be addressed first. If there are several equally responsible parties, the selection can be based on expediency, urgency, or the degree of causation. It is especially considered which party can most effectively and quickly avert the hazard. The decision on selection must take into account the principle of equal treatment under Art. 3 GG and the principle of proportionality, and it must be documented and, if in doubt, be subject to judicial review.
What rights and obligations do persons subject to police duties have?
Persons subject to police duties are required to comply with police orders aimed at averting a specific danger. This may include eliminating a dangerous condition, refraining from certain actions, or tolerating police measures. In return, those concerned have the right to lodge objections against police measures and, if necessary, seek judicial review (e.g. by bringing an action before the administrative court). They are only obliged to tolerate measures that comply with the principle of proportionality. Any reimbursement for danger elimination measures may be claimed from those responsible in accordance with the relevant cost-bearing rules in police law.
Can legal entities be subject to police duties?
Yes, according to established case law and interpretation of police laws, legal entities under public and private law can also be subject to police duties if they qualify as (co-)responsible parties for a danger that emanates from them. For example, a GmbH may be addressed as property owner under condition responsibility if a danger emanates from its building. The measures are then addressed to the legal representative of the legal entity (e.g. managing director, board). Fault is not determined by individual misconduct, but by objective attribution of the hazard.
Are there exceptions to police liability?
Certain groups (e.g. diplomatic representatives, sovereign officials acting in the performance of their official duties) may, in some cases, be exempt from regulatory liability due to international, constitutional, or administrative law special provisions. Although minors are generally subject to police liability, their legal guardians are usually considered for liability. An exception may also apply if a statutory protection law (e.g. right to refuse testimony) opposes measures against the liable person, or they are in a particularly protected situation. Such exceptions must be interpreted restrictively.
What happens if a person subject to police duties fails to comply with their obligation?
If a person subject to police duties does not comply with a lawful order, the police may apply enforcement measures under the respective state law to avert the danger (e.g. substitute performance, direct coercion, or coercive fine). The costs of enforcement are regularly imposed on the person subject to police duties. In addition, failure to comply may constitute an administrative offense or entail further legal consequences. However, before applying enforcement measures, the principle of proportionality must always be observed, and appropriate orders and warnings must regularly be given beforehand.
