Definition and Legal Foundations of Police Prohibitions
Police prohibitions are legally binding orders by which police authorities restrict or prohibit the behavior of persons or the use of objects to ward off imminent dangers to public safety and order. They are among the classic measures of hazard prevention and are regularly anchored in the police law of the federal states. The following article examines the definition, legal requirements, types, legal effects, and legal protection in connection with police prohibitions.
Legal requirements for police prohibitions
Statutory basis
The authority of the police to issue prohibitions in Germany is generally derived from the police laws of the federal states, such as the General Security and Order Act (ASOG) in Berlin or the Police Act (PolG) in Bavaria. The legal framework is governed by the principle of the reservation of law in accordance with Article 20(3) of the Basic Law (GG), according to which any interference with fundamental rights requires a statutory basis.
Requirements and addressees
Police prohibitions may be issued if a specific danger to public safety and order exists or is imminent. Sources of danger may include natural persons, legal entities, or objects. The person against whom the prohibition is directed is referred to as a ‘behavioral interferer’ or ‘condition interferer,’ depending on whether the danger results from their behavior or from the possession of an object.
Principle of proportionality
Every police prohibition must comply with the requirement of proportionality. It must be suitable, necessary, and appropriate to avert the imminent danger. A less restrictive measure that would infringe on the rights of those affected to a lesser extent should be preferred.
Types of police prohibitions
General and specific police prohibitions
A general police prohibition is directed at an indefinite number of people and is usually imposed by public announcement, such as in the case of assembly bans. The specific police prohibition, by contrast, is addressed individually to one or more persons or to a specific group of people.
Typical manifestations
The most common police prohibitions include:
Orders to leave or avoid places
Affected individuals are required to leave a certain location or are prohibited from entering a location (e.g., danger area, event site).
Entry and restraining orders
Particularly in the context of protection against violence, individuals can be prohibited from approaching certain areas or persons.
Event bans
If assemblies, demonstrations, or other events pose a danger, their execution may be prohibited. Specific regulations are provided for this in the Assembly Act.
Prohibitions on activities and professional practice
In certain cases, it may be prohibited by criminal law or for reasons of police law to exercise certain activities, for example, in case of danger involving hazardous objects or substances.
Procedure and form of police prohibitions
Administrative act
Police prohibitions are generally issued as administrative acts (§ 35 Administrative Procedure Act – VwVfG). The administrative act can be issued in writing, orally, or electronically, but must always be sufficiently specific so that the affected person can recognize which conduct is prohibited.
Statement of reasons and notification requirement
The prohibition must be justified (§ 39 VwVfG) so that the affected person can understand the decision. In addition, the prohibition must be notified to the person concerned or the addressee.
Legal consequences and enforcement of police prohibitions
Direct coercion and substitute performance
If the affected person does not comply with the prohibition, the police may enforce the measure through direct coercion or prevent the unauthorized act, for example, through expulsion, detention, or confiscation.
Sanctions for violations
Violations of police prohibitions generally constitute an administrative offense and may be subject to a fine (§ 118 OwiG). In certain cases, the conduct may also be punishable by law, such as violation of an officially imposed ban on residence under § 123 or § 145 StGB (trespassing, resistance against enforcement officers).
Legal protection against police prohibitions
Objection and action for annulment
Legal proceedings before the administrative courts are open to those affected by police prohibitions. Affected persons may file an objection to the administrative act and subsequently bring an action for annulment before the administrative court.
Interim legal protection
Since police prohibitions may entail significant restrictions of fundamental rights, interim legal protection according to § 80(5) VwGO is especially important. The immediate enforceability of the prohibition can be contested, allowing judicial review of whether the prohibition is lawful and proportionate.
Distinction from other police measures
Police prohibitions must be distinguished from police orders and other dispositions. While a prohibition requires abstaining from certain conduct, an order requires affirmative action. In practice, combinations can occur, such as a prohibition to enter a specific place combined with an order to leave immediately.
Significance and limits of police prohibitions
Police prohibitions are an essential instrument of hazard prevention. However, their imposition is always subject to the principles of proportionality and a legal basis. They regularly interfere with fundamental rights such as general freedom of action (Art. 2(1) GG), the freedom of assembly (Art. 8 GG), or the freedom of movement (Art. 11 GG). Judicial review of the measure is therefore ensured.
Literature
- Handbook of Police Law, current editions
- Police acts of the federal states
- Administrative Procedure Act (VwVfG)
- Basic Law (GG)
Note: This article is intended to provide general information on police prohibitions and to give a comprehensive overview of the legal dimensions in German police law.
Frequently asked questions
When and under what conditions may the police impose a police prohibition?
A police prohibition may generally be issued if there is a concrete danger to public safety or order emanating from a person or an object. The legal basis for this can be found in the respective police act of the federal states or in federal law, such as the Federal Police Act. The prerequisite for issuing a prohibition is the existence of a so-called danger, whereby, depending on the type of prohibition, even an abstract danger may be sufficient (e.g., in the case of bans on assemblies). In addition, the prohibition must be proportionate, i.e., it may only go as far as is necessary to avert the danger and must not constitute unreasonable interference with fundamental rights. Frequently, before issuing a prohibition, a less restrictive measure must be examined. The police prohibition must also be directed at the correct person or group of people (principle of causation) and must be defined with regard to content, time, and place.
What legal remedies are available against police prohibitions?
Legal recourse is generally available to the person affected by police prohibitions. This means that the affected person can file an objection against the prohibition with the competent authority. If the objection is rejected or the authority does not respond within a certain period, there is the possibility of filing a lawsuit before the administrative court. In urgent cases, interim legal protection can also be requested (application for the ordering of suspensive effect or for the issuance of a temporary injunction in accordance with §§ 80, 123 VwGO). The formal and substantive requirements for legal remedies are set out in the relevant procedural laws, such as the Administrative Court Code (VwGO).
What types of police prohibitions exist under German law?
Different forms of police prohibitions exist under German law. The most important include the ban on residence (area-specific prohibition to stay at a certain place), the contact ban (prohibition to contact certain people), the professional or activity ban (temporary prohibition of professional activities), the event or assembly ban (prohibition of holding public events or assemblies), and the entry ban (prohibition to enter certain premises or buildings). The exact form and specification of the prohibitions result from special statutory provisions, for example, from the Assembly Act, the Infection Protection Act, or the respective police laws.
What legal bases legitimize police prohibitions?
Police prohibitions in Germany are legitimized by different laws depending on the respective subject. The general basis is the police acts of the federal states, which set out the general clause and specific norms for intervention. For certain case groups, federal statutory provisions exist, for example, the Assembly Act (VersG) for assembly bans, the Infection Protection Act (IfSG) for prohibitions for combating epidemics, or the Residence Act (AufenthG) for expulsions and bans on residence for foreigners. The constitution (especially the Basic Law, GG) also sets limits on police prohibitions, particularly through fundamental rights such as freedom of assembly (Art. 8 GG) or general freedom of action (Art. 2 GG). Therefore, police prohibitions must always be based on a sufficient legal authorization and be assessed in light of constitutional requirements.
How does a police prohibition become legally effective and how is it served?
A police prohibition is issued in the form of an administrative act and generally becomes effective upon notification to the affected person. This notification must be made in such a way that the recipient is actually or at least legally able to become aware of the content and burdensome consequences of the prohibition. This may be done orally, in writing, or electronically. Service is governed by the provisions of the Administrative Procedure Act (VwVfG) or the administrative service laws of the states. In the case of police immediate enforcement, immediate (oral) notification is permissible, and written confirmation may be provided afterwards.
Is the police required to adhere to proportionality principles when imposing a prohibition?
Yes, police action in general and particularly the issuing of prohibitions are strictly subject to the principle of proportionality. This means that the police prohibition must be suitable to avert the danger, necessary (no equally effective and less intrusive means available), and appropriate (the disadvantages must not be disproportionate to the intended purpose). When selecting and formulating the prohibition, the authority is obliged to balance the public interest in averting danger with the fundamental rights of the affected person. Compliance with the principle of proportionality is also subject to judicial review.
