Police Measures

Concept and fundamentals of police measures

Police measures are actions taken by the police based on the respective police laws of the federal states or the federal government as well as specific legal provisions to ensure public safety and order. They include a variety of interventions and actions aimed at averting dangers, conducting investigations, and enforcing laws.

Definition in the legal sense

Police measures are legally binding orders, actions, or interventions by the police directed towards persons or property. Their legal basis is found in general police and regulatory law, in criminal procedure law, and in numerous ancillary statutes. The most important statutory foundations at the state level are the respective police laws of the federal states, while the Federal Police Act (BPolG) applies to the Federal Police.

Legal basis and regulatory systematics

General police and public order law

Police measures are primarily regulated in the police and public order law of the states. These regulations set out the requirements for taking measures (elements of the offense) and the legal consequences (content and limits of the measure). The central principles are proportionality, the requirement of certainty, and the principle of legality in administration.

Example structure of a police act

1. Tasks and powers of the police
2. Requirements for taking action (danger, disturber)
3. Types of measures (e.g., exclusion from a location, identity verification, seizure)
4. Legal remedies
5. Data protection and special protective provisions

Special rights of intervention in criminal procedure law

Within the framework of criminal prosecution, the police have expanded powers in the investigation procedure according to the Code of Criminal Procedure (StPO) (e.g., search, seizure, telecommunications surveillance). Strict requirements apply here, especially regarding the intensity of the intervention and the protection of fundamental rights.

Relationship to the Basic Law

Police measures often constitute infringements of fundamental rights, especially the right to personal freedom (Art. 2(2) GG), property (Art. 14 GG), the secrecy of telecommunications (Art. 10 GG), or the inviolability of the home (Art. 13 GG). Every measure must therefore be taken under a law or on the basis of a law (legal reservation). Its practical implementation is also subject to the rule of law as set out in Art. 20(3) GG.

Types and forms of police measures

Preventive (danger-averting) measures

Danger prevention comprises all measures intended to avert an existing or anticipated danger to public safety or order.

• Exclusion from location and ban on presence: Measures to prevent imminent danger by prohibiting a person from entering or remaining in a specific location.
• Verification of identity: Checking the personal details of individuals to determine whether they pose a danger or are needed for the prevention of a danger.
• Seizure and confiscation: Temporary removal or safekeeping of items to avert dangers or protect public safety.

Criminal prosecution measures

Within the scope of investigations and criminal prosecution, police measures have a special legal framework and may involve more significant infringements of fundamental rights.

• Search: Search of persons, residences, or objects to find evidence or apprehend suspects.
• Confiscation: Seizure of items that may serve as evidence.
• Preliminary (temporary) arrest: Custodial measure for apprehension of suspects.

Preventive police measures

Preventive police measures serve to avert dangers before concrete criminal offenses or public order disturbances occur.

• Video surveillance of public spaces
• Monitoring of residence
• Reporting and disclosure obligations

Requirements and limits of police measures

Disturber principle and responsibility

Measures are primarily directed at the so-called disturber, i.e., the individual from whom the danger emanates, or the status disturber, who possesses a dangerous object. In exceptional cases, a measure may also be directed at third parties (e.g., non-disturbers, if the danger cannot be averted otherwise).

Principle of proportionality

All police measures are subject to the principle of proportionality. This means that the measure must be suitable, necessary, and appropriate to achieve the intended goal. No less intrusive means should be available, and the measure must not be disproportionate to the severity of the danger.

Exercise of discretion

Police measures are generally carried out at the due discretion of the police. The police have a margin of decision but must exercise this discretion lawfully and provide justification.

Legal remedies and oversight of police measures

Legal remedies and protection of rights

Persons affected by police measures can appeal to the administrative courts. Depending on the individual case, remedies such as objections, actions before administrative courts, or immediate complaints (e.g., in the case of deprivation of liberty) are available.

Judicial and data protection authority oversight

Courts review the lawfulness of police measures, in particular with regard to compliance with legal requirements and the protection of fundamental rights. In addition, data protection authorities are responsible for ensuring compliance with data protection provisions in police measures, especially in the handling of personal data.

Significance and distinctions

Police measures are a central instrument for maintaining public safety and legal order. They must be distinguished from measures by other authorities, such as regulatory agencies or administrative authorities, as well as from judicial orders based on different legal grounds.

Police measures differ due to their specific legal basis, their purpose derived from danger prevention and criminal prosecution, and the extensive limitations for the protection of fundamental rights. The precise form varies in detail depending on the federal state as well as between the Federal Police and the state police authorities.

Conclusion: Police measures are complex and comprehensively regulated interventions and actions by the police to avert danger, prosecute crimes, and safeguard public safety. Their legitimacy, implementation, and oversight are subject to strict legal requirements for the protection of fundamental rights and oversight by independent institutions.

Frequently Asked Questions

Who is authorized to order police measures and on what legal basis?

Police measures may generally only be ordered and executed by police departments and officers who are authorized for this purpose. The police do not act at their own discretion but are bound by law and order (the so-called principle of legality, Art. 20(3) GG). The main legal bases for police measures are found in the respective police act of the federal state (e.g., SOG, POG) as well as in special statutory provisions such as the Code of Criminal Procedure (StPO) for repressive police action. While police law aims at protecting public safety and order (danger prevention), the StPO mainly governs measures during investigations relating to criminal offenses (criminal prosecution). Who may order a specific measure depends on the measure itself, the intensity of the intervention, and the internal competence regulations within the police. Measures involving significant infringements of fundamental rights must regularly be approved by a judge (judicial review requirement).

What requirements must be met for the implementation of a police measure?

Certain substantive requirements, as set out in the relevant legal bases, must be met for a police measure to be taken. In the area of danger prevention, there must usually be a concrete danger to public safety or order. A danger is a situation in which harm to a legally protected interest under police law is likely. In repressive matters, namely criminal prosecution, there must generally be an initial suspicion of a criminal offense (§§ 152 ff. StPO). In addition, the measure must be necessary, suitable, and proportionate. This means it must at least be conducive to achieving the legitimate aim (suitability), be the mildest equally effective means (necessity), and interests must be balanced in favor of the common good or the protection of legal interests (proportionality).

What rights do individuals affected by police measures have?

Persons affected by police measures have – regardless of the circumstances of the measure – extensive rights based on the fundamental rights of the Basic Law (e.g., Art. 2(2) GG – personal freedom, Art. 13 GG – inviolability of the home) and statutory protective provisions. First, the police must inform those concerned of the reason for the measure, unless doing so would frustrate its purpose (§ 36 VwVfG, § 163a StPO). The duty of documentation obliges the police to record the measure. Persons affected are generally entitled to legal remedies, such as the right to file a complaint or request judicial review; this can occur by way of objection (§ 68 ff. VwGO) or by applying for expedited judicial protection (§ 123 VwGO, § 80 VwGO). Furthermore, those affected have a right to compensation for unlawful police measures, e.g., under § 839 BGB or Art. 34 GG, and under certain conditions to inspect records (§ 147 StPO).

What levels of interference exist for police measures and what is their significance?

Police measures differ according to the intensity of the interference, which has a particular impact on the legal requirements and the extent of judicial oversight. There is a distinction between minor measures such as identity verifications or exclusion from locations, which typically respond to situational disturbances and represent relatively minor fundamental rights encroachments. Measures such as searches, longer-term surveillance, seizures, or deprivations of liberty are more invasive of fundamental rights and therefore often require additional safeguards such as judicial authorization (§§ 102, 105 StPO; Art. 13(2) GG for house searches; Art. 104(2) GG for deprivations of liberty). The level of interference must be taken into account when selecting the measure and, in particular, when reviewing proportionality.

How can legal action be taken against police measures?

There are various legal remedies available against police measures. In the area of preventive police action, those affected can generally file an objection according to administrative procedure law (e.g., § 68 VwGO); an action before the administrative court may be brought against the decision on the objection. In criminal procedure, i.e., in the context of investigation measures in criminal cases, the primary remedy is a complaint under § 304 StPO. For particularly drastic measures, an application for expedited judicial protection (preliminary injunction or urgent court proceedings) can also be made. In cases of deprivation of liberty, a judicial arrest warrant is required, which can be reviewed for its lawfulness and, if necessary, lifted by a court (§ 117 StPO). Irrespective of the proceedings, compensation or damages can be claimed if the measure proves to be unlawful.

What is the significance of the principle of proportionality in police measures?

The principle of proportionality is the central criterion for assessing the lawfulness of all police measures and is based on the rule of law (Art. 20(3) GG) as well as the protection of fundamental rights. Each police measure must pursue a legitimate aim, be suitable to achieve this aim, necessary, and be the least intrusive among several possible measures. In addition, a balance must be struck between the encroachment on the rights of the individual and the interests of the public (“appropriateness in the narrow sense”). Disproportionate or arbitrary measures are impermissible and can render the measure unlawful and give rise to claims for compensation.

How long may police measures last and what control mechanisms apply?

The duration of police measures is determined by the principle of proportionality and the purpose pursued. Measures such as identity verification or criminal identification processing may only last as long as is necessary to achieve their purpose. Maximum time limits are explicitly stipulated by law for especially burdensome measures like deprivation of liberty (see Art. 104 GG, § 128 StPO – “immediate” judicial presentation, restrictions on detention duration). Oversight of the duration is exercised through judicial review obligations as well as through regular reporting and documentation duties of the police. Ombudsman offices and police complaint bodies also provide control mechanisms for sanctioning unlawful exceedances of permissible duration.