Concept and meaning of police law
Police law is a central subfield of public law and encompasses all legal norms that regulate the duties, responsibilities, powers, and limitations of police authorities. It forms the legal basis for police action in the area of prevention, i.e., for averting danger, and is an essential element for preventing threats and maintaining public safety and order. Police law governs both the form of action by the police and its powers of protection and intervention over citizens.
Historical development of police law
Development up to the 19th century
Police law has historical roots that reach far back into the Middle Ages and early modern period. Originally, the term “police” was broad and included all measures for the welfare, safety, and order of the community. Over the centuries, the term increasingly focused on the prevention of danger and the averting of disturbances to public safety and order.
Police law in Germany after 1945
After the Second World War, police law underwent a comprehensive reorganization in Germany. The separation between repressive security law (criminal prosecution) and preventive police law was further developed. At the state level, police laws emerged that precisely regulate the duties, powers, and limits of the police.
Legal sources of police law
Police laws of the federal government and the states
Police law in Germany is structured federally. The general prevention of danger is fundamentally under the jurisdiction of state police authorities. Each state’s police law is the main legal source. In addition, there are special federal police laws, such as the Federal Police Act (BPolG) and the law on the Federal Criminal Police Office (BKAG).
Examples of police laws:
- Bavarian Police Powers Act (PAG)
- North Rhine-Westphalia Police Act (PolG NRW)
- Federal Police Act (BPolG)
Other legal sources
In addition, norms can also be found in the Basic Law, in particular Art. 2 para. 1 (General freedom of action), Art. 13 (Inviolability of the home), and Art. 20 para. 3 (principle of legality of administration), which determine the framework for police action. Further relevant regulations include the Code of Criminal Procedure (StPO), the Act on Administrative Offenses (OWiG), and special statutory provisions for individual areas of responsibility (e.g., assembly law).
Areas of police law
Danger prevention (preventive duties)
Police law primarily regulates danger prevention, i.e., the prevention of harm to public safety and order. This includes the prevention of threats to life, health, property, the environment, and collective legal interests.
Prosecution of criminal offenses (repressive duties)
The prosecution of criminal offenses is fundamentally the task of the criminal prosecution authorities under the Code of Criminal Procedure. However, in police law, there is a close interconnection, particularly when preventive and repressive measures overlap, as in cases where a crime is imminent.
Basic concepts of police law
Concept of ‘public safety’
Public safety refers to the protection of the objective legal order, the integrity of individual rights, the existence of the state, and other bearers of public authority.
Public order
Public order is understood as the entirety of unwritten rules whose observance, according to prevailing social and ethical views, is regarded as an indispensable prerequisite for orderly coexistence.
Danger
A danger within the meaning of police law is a situation in which harm to public safety or order is likely to occur.
Disturber and non-disturber
Police law distinguishes between behavioral disturbers (persons responsible who, by their behavior, cause the danger), situational disturbers (those responsible by virtue of their actual or legal state, e.g., as owners of a source of danger), and non-disturbers (uninvolved parties who may only be called upon as a last resort in exceptional cases for danger prevention).
Powers of intervention and forms of action
General and special powers
The police’s rights of intervention are differentiated into general powers for danger prevention (sections of the state police laws) and special powers, such as those in the area of assembly law, immigration law, and enforcement of administrative acts.
Forms of action
The police can apply various forms of action, including administrative acts (e.g., orders to leave an area), actual acts (e.g., eviction), direct force, and simple administrative actions (e.g., advice or provision of information).
Principles of police law
Principle of proportionality
The principle of proportionality is regarded as a central concept and obligates the police to limit measures to what is necessary, to choose the least intrusive means, and to conduct a balancing of interests.
Principle of legality of the administration
The legality principle requires that all police measures be based on a statutory foundation and comply with the requirements of the rule of law.
Principle of opportunity
In contrast to criminal prosecution, the police may decide at their discretion, when there is a danger, whether and to what extent to act. This includes, among others, the choice of method and degree of danger prevention.
Special features of police law
Law of assembly
Police measures in connection with public assemblies are subject to special constitutional limitations. Interventions require a legal basis and must safeguard the right of assembly under Art. 8 of the Basic Law.
Use of technical means
Police law comprehensively regulates the prerequisites for the use of technical means such as video surveillance, telecommunications surveillance, or the deployment of drones, always with special consideration for fundamental rights.
Data collection and data protection
Police authorities are subject to strict data protection requirements when collecting, processing, and using personal data, derived from federal and state data protection laws as well as the General Data Protection Regulation (GDPR).
Legal protection and oversight of police actions
Administrative legal protection
Persons affected by police measures have the option to seek legal protection against police orders and actions by filing an objection and a rescissory action before the administrative court.
Parliamentary and judicial oversight
Police actions are subject to parliamentary oversight, judicial review, and oversight by independent data protection officers.
European and international influences
Police law is increasingly shaped by European and international aspects. Regulations within the European Union, international police cooperation (e.g., Europol, Interpol), and obligations under international law influence national policing activities.
Literature and further regulations
Police law is the subject of extensive academic literature and commentaries. It is continually being developed and codified by case law. There is ongoing adaptation to current social and technological developments.
Summary: Police law is a dynamic subfield of public law. It comprehensively regulates police actions to prevent danger and maintain public safety and order. Its foundations, forms of action, and powers of intervention are stipulated by state and federal law and are limited by fundamental rights and subject to constant judicial and parliamentary review. Ongoing European and international cooperation constantly expands the scope of police law.
Frequently asked questions
How far does police discretion extend in the context of danger prevention?
Police discretion regarding measures to prevent danger is a central element of police law. It covers both the discretion of whether and how to take police action (discretion of selection), as well as discretion on whether to act at all (discretion of resolution). The exercise of discretion is, however, limited by legal boundaries, particularly the principle of proportionality according to Art. 20 para. 3 GG and the special police laws of the federal states. The police may not act arbitrarily but must choose the mildest suitable means. In addition, the principle of equal treatment and the requirement for error-free exercise of discretion must be observed. Discretionary errors can occur, for example, if the police consider irrelevant factors or fail to exercise discretion at all (‘failure to exercise discretion’). Although the police generally have room for assessment and prediction—such as when judging whether a danger is actually present—the final review lies with the courts, which in the event of dispute, examine whether there has been an excess or abuse of discretion.
When is it permissible under police law to involve non-disturbers (uninvolved parties)?
The involvement of non-disturbers is fundamentally allowed only as a subsidiary measure when no measure against the disturber (behavioral or situational) is likely to be successful, or when the latter cannot be reached within a reasonable time. The legal bases for involving uninvolved parties are usually found in the respective state police laws and must be applied strictly. A classic example is an order of tolerance when eliminating a danger, such as opening an uninvolved party’s premises to pursue a fleeing offender. In principle, interventions in the rights of uninvolved parties are only permissible if this is absolutely necessary for effective danger prevention and no milder, equally effective measures are available. Compensation for damage caused may be considered under §§ 39 ff. OBG NW or equivalent regulations in other federal states.
What is the significance of the types of police measures?
In police law, measures are typically divided into standard measures and general authorizations. Standard measures are specifically regulated powers (such as identity checks, orders to leave an area, searches) that concretize and typify the scope and nature of police authority. Their use generally requires compliance with specific conditions explicitly stated in law. The general authorization (e.g., § 8 PolG NRW), on the other hand, permits the police to take any measures necessary to avert danger, provided no more specific powers exist. Differentiating between these is essential for determining the legal basis of an action, its requirements, as well as legal certainty and transparency for those affected. In addition, the type of measure determines what fundamental rights may be interfered with and what requirements must be met regarding justification and documentation.
What is the role of the opportunity principle in police action?
The opportunity principle allows the police, within their scope of discretion, to decide for themselves whether and how to intervene. This distinguishes police law significantly from the principle of legality in criminal proceedings, which mandates compulsory prosecution. The decision to take police measures such as checks, orders to leave an area, or seizures generally lies within the discretion of the authority and depends on various factors, such as the level of danger, resource allocation priorities, and assessment of prospects for success. Limitations to the opportunity principle exist where special legal provisions require mandatory intervention or where third-party protectable interests, such as imminent danger or acute threats, demand it.
To what extent is police action limited by fundamental rights?
Police action typically constitutes an interference with fundamental rights, particularly the freedom of the person (Art. 2 para. 2 GG), the right to inviolability of the home (Art. 13 GG), property (Art. 14 GG), or general freedom of action (Art. 2 para. 1 GG). Each police measure therefore requires a statutory basis (‘reservation of law’) and must be proportionate both formally and substantively. Interventions are only permitted if they serve the legitimate purpose of danger prevention and are suitable, necessary, and appropriate. Moreover, special constitutional restrictions such as the requirement to cite the legal basis (Art. 19 para. 1 sentence 2 GG) and human dignity (Art. 1 GG) must be strictly observed. There are also requirements of specificity and transparency arising from the rule of law, enabling those affected to comprehend the lawfulness of the measure and seek judicial review.
What legal remedies are available to those affected by police measures?
Those affected by police measures have access to various judicial and extrajudicial legal remedies. Initially, an objection can be lodged with the competent police or regulatory authority, provided for by the respective state administrative procedures act. Subsequently, a rescissory action before the administrative courts is regularly possible in order to have the unlawfulness of a burdensome measure established or to obtain its annulment. In particularly urgent cases, such as detention or deportation, an application for interim relief under §§ 80, 123 VwGO is available. The administrative courts review the lawfulness of the measure in full and may annul or restrict the measure in the case of errors in the exercise of discretion or violations of fundamental rights. It is furthermore possible to assert claims for damages or compensation under § 839 BGB in conjunction with Art. 34 GG or special legal provisions if the measure was unlawful and caused damage.
