Concept and Definition of Police Illegality
Die Police Illegality is a central concept in police and regulatory law under German public law. It refers to an unlawful condition or conduct that violates police or regulatory provisions and thereby causes or threatens to cause a disturbance of public safety or order. The determination of police illegality is the essential prerequisite in regulatory law for police or regulatory intervention and forms the basis of any police hazard prevention.
Legal Foundations of Police Illegality
Police Law Provisions
The legal basis for police illegality arises primarily from the police laws of the federal states (e.g., Police Law of North Rhine-Westphalia, Police Law of Bavaria), as well as from general hazard prevention laws and, in part, from federal regulations (e.g., Federal Police Act).
Public Safety and Public Order
The central connection of police illegality lies in the disturbance of public safety or public order:
- Public safety protects the integrity of the objective legal order, the subjective rights and interests of individuals, as well as the existence of the state and its institutions.
- Public order refers to the entirety of unwritten rules for individual conduct in public, the observance of which is considered an indispensable prerequisite for orderly coexistence.
A violation of these protected interests by an act or a state constitutes police illegality.
Types and Areas of Application of Police Illegality
Conduct and Condition Disturbers
In police law, in connection with police illegality, a distinction is made between the status of a conduct disturber und and condition disturber :
- Conduct-related police illegality: Exists when a person’s behavior (act or omission) causes a danger to public safety or order. Example: Shouting loudly at night, disturbing nighttime peace.
- Condition-related police illegality: Exists when there is a police-illegal condition (regardless of specific behavior), e.g., a roof tile about to fall onto public ground.
The distinction is crucial for selecting the correct addressee for police measures.
Danger and Disturbance
- Police-illegal danger: A situation where damage to protected interests is possible (§ 14 OBG NRW, § 8 PolG BW).
- Police-illegal disturbance: A condition where a violation of public safety or order has already occurred.
Requirements and Legal Consequences of Police Illegality
Requirements for Police Intervention
The existence of police illegality is an absolute requirement for lawful police or regulatory authority action. There must be a specific danger or disturbance. A purely abstract possibility without reference to a concrete legal interest violation is generally not sufficient.
Legal Consequences
The determination of police illegality generally entitles and obligates the police or regulatory authority to act. Possible legal consequences include:
- Administrative acts to prevent or remove the danger (e.g., issuing a dispersal order, securing objects),
- Immediate enforcement actions,
- Substitute performance (e.g., removal of dangerous objects at the expense of the obliged party).
Distinction from Regulatory Offenses and Criminal Law Violations
Regulatory Offenses
Police illegality is not synonymous with a regulatory offense as defined by the Act on Regulatory Offenses (OWiG). While a regulatory offense is a statutorily defined, fineable misconduct, police illegality refers to any impairment of public safety or order, regardless of a fine being imposed.
Criminal Law Relevance
Not every police illegality constitutes a criminal offense. Conversely, many criminal norms at the same time stipulate behavioral requirements under police law, the violation of which can also constitute police illegality in the narrower sense.
Legal Dogmatic Significance and Function of the Term
The term police illegality serves as a central substantive criterion for the intervention powers of the police and regulatory authorities. Only police-illegal behavior or conditions enable administrative interventions for prevention or hazard control. Its precise definition and interpretation have a direct impact on fundamental rights intervention and the necessity and proportionality of sovereign measures.
References
- Koch, Hans-Joachim: ‘Police and Regulatory Law’, Munich, current edition
- Gusy, Christoph: ‘Police and Regulatory Law’, Tübingen, current edition
- Schmidt-Aßmann, Eberhard: ‘General Police and Regulatory Law’, current edition
Summary: Police illegality forms the legal basis for police and regulatory authority action in the area of hazard prevention. It characterizes a state or conduct that violates the protected interests of public safety or order. The existence of police illegality enables legal measures ranging from preventive interventions to direct execution in hazard removal. Precise legal classification and differentiation from related concepts are essential for the rule-of-law control of sovereign interventions and guarantee the protection of individual fundamental rights in the context of police law.
Frequently Asked Questions
What legal consequences can police illegality have for affected individuals?
In the event of police illegality, that is, behavior in violation of police law, those affected may face various legal consequences. The nature and severity of the violation are decisive. For example, non-compliance with a police order can result in coercive measures being applied under the respective state police laws, including fines, direct force, or substitute performance. Police illegality can also have regulatory offense or criminal law consequences if, in addition to police law, other legal norms are violated, such as § 113 StGB (resisting law enforcement officers). Furthermore, cost orders for police measures initiated by the police-illegal conduct can be issued, covering both direct costs (deployment costs, clearance costs, etc.) and consequential costs. In particularly serious cases, there is also the risk of third-party claims for damages if third parties are harmed by the police illegality. In addition, legal remedies under administrative law, such as prohibition orders or hazard prevention orders, can be issued and enforced individually.
Can a police-illegal action exist without fault in the sense of criminal law?
Yes, in the context of police law, the establishment of police illegality generally does not depend on whether the person acted culpably in the sense of criminal law. What is decisive is the existence of a danger to public safety or order that is objectively caused or maintained by the person’s behavior. Police law is predominantly focused on hazard prevention and does not necessarily require intent or negligence. It is sufficient that an objective cause of danger exists to establish police liability. Only in borderline cases, such as unreasonable demands or lack of scope for action (exclusion of police liability), does the subjective element play a role. In principle, however, subjective fault—as required by criminal law—is not a mandatory prerequisite for police liability.
Who is considered a disturber in the police law sense in the event of police illegality?
Under police law, a distinction is made between a conduct disturber and a condition disturber. A conduct disturber is someone who, through their actions or omissions, directly endangers or disturbs public safety or order—that is, someone who causes or maintains a danger through police-illegal behavior. A condition disturber, on the other hand, is someone who has actual control over a police-illegal situation, for example, as owner or possessor of an item from which the danger emanates (e.g., an unsecured construction fence posing a risk of falling). Both forms of the status as a disturber each establish police liability and can result in measures being taken against the respective individual or legal entity. In exceptional cases, a so-called non-disturber may also be held liable, for instance, to avert danger.
Can police illegalities become time-barred, and what are the limitation periods?
The prosecution of police illegalities is subject to specific administrative law rules, which differ in part from those governing criminal and regulatory offenses. Legal measures for hazard prevention (e.g., orders to cease, securing, or dispersal orders) generally require an ongoing or present police-illegal situation; classic limitation periods do not usually apply to immediate hazard prevention measures. However, if prosecution involves regulatory offenses or crimes in connection with police illegality, the limitation periods of the Act on Regulatory Offenses (OWiG) or the Criminal Code (StGB) apply. Cost orders resulting from ordered measures can themselves become time-barred; the relevant periods are generally set by administrative enforcement law. The specific duration depends on the applicable federal or state law and the type of measure, but limitation periods between three and five years are common depending on the circumstances.
What options exist to challenge police measures resulting from police illegality?
Persons affected may generally challenge police measures taken on account of alleged police illegality by means of legal remedies such as objection and lawsuit via the administrative courts. In case of burdensome orders (e.g., dispersal order, prohibition order, securing), these can first be contested by objection and subsequently challenged before the administrative court. In cases of imminent danger or immediately enforceable measures, often only an application for restoration of suspensive effect under § 80 (5) VwGO remains. In addition, an application for interim legal protection can be filed if there is no time for ordinary proceedings. Cost orders may also be contested by objection and, if necessary, by action for annulment. The prospects of success depend mainly on whether the police measure was lawful, particularly proportionate and necessary.
What role does the discretionary principle play in the sanctioning of police illegalities?
The discretionary principle, which states that the responsible authority may decide at its proper discretion whether and how to proceed against established police illegality, is central to police action. This applies particularly in the area of hazard prevention: the police are not always obliged to respond to every police-illegal action with immediate enforcement. Rather, they have discretion as to whether and which measures—also measured by proportionality—should be used. However, this discretion is limited by law and court rulings; where there is a substantial danger or serious disturbance, discretion becomes zero and the police are obligated to act (the so-called intervention obligation). For minor infringements, they may refrain from measures or use the least intrusive remedy. The discretionary principle also applies to cost orders, particularly regarding economic reasonableness and triviality.
How does police illegality relate to the fundamental rights of the affected person?
In connection with police illegalities, the fundamental rights of the affected persons must always be observed and weighed against each other. Police intervention for hazard prevention regularly constitutes an interference with fundamental rights—such as general freedom of action (Art. 2(1) GG), personal freedom (Art. 2(2) GG), inviolability of the home (Art. 13 GG), or property (Art. 14 GG). Therefore, police measures must always be proportionate—that is, appropriate, necessary, and reasonable. A balancing of interests must be carried out in each individual case, particularly considering the seriousness of the impending dangers, the extent of the interference, and the protection-worthiness of the affected fundamental rights positions. Disproportionate or unlawful interventions are inadmissible and can be challenged by legal recourse. The police are obligated to choose the least intrusive of the possible means and to respect the fundamental rights of those affected.
