Concept and Legal Nature of the Police Order
The police order is a legal instrument under police law that enables police authorities, by means of an administrative act, to issue binding orders to avert dangers to public safety or order. It is a central tool of regulatory administration and is firmly anchored in the police laws of the federal states as well as in federal law.
A police order is directed at a specific individual case; it thus differs from a general order, which affects an indefinite number of persons. Police orders are issued in the form of an administrative act pursuant to Section 35 of the Administrative Procedure Act (VwVfG).
Legal Foundations
Statutory Foundations
The statutory foundations for police orders are found in particular in the police laws of the federal states (e.g., Police Act of North Rhine-Westphalia, Saxon Police Act) as well as in the Federal Police Act for matters of the Federal Police. The relevant provisions regulate under which conditions police authorities are authorized to take action for averting danger and to issue orders.
Significance of Administrative Action
As an administrative act, the police order is subject to general administrative law, especially regarding form, justification, notification, and legal protection. Errors in the administrative procedure may render the order unlawful or ineffective.
Requirements for Issuing a Police Order
Situation of Hazard
A central prerequisite for issuing a police order is the existence of a specific danger to public safety or order. The danger must be present or at least foreseeable. This may involve dangers to life, health, property, public institutions, or the state order.
Selection of the Responsible Party (Disturber Principle)
Police orders are usually directed against the so-called disturber, i.e., the person or entity from whom the danger directly or indirectly emanates. Pursuant to the causation principle, a distinction is made between behavioral disturbers (actions cause the danger) and status disturbers (the danger arises from a specific situation).
In exceptional cases, orders may also be directed against non-disturbers, so-called non-disturber measures, provided that effective and proportionate danger prevention is otherwise not possible.
Discretion and Proportionality
When issuing a police order, the authorities exercise discretion. They are obliged to choose the least severe means and to observe the prohibition of excess (principle of proportionality). This includes the suitability, necessity, and appropriateness of the measure.
Contents and Forms of the Police Order
Possible Measures
Police orders can contain a wide variety of directives, for example:
- the prohibition of an event,
- the closure of businesses,
- requirements for securing a property,
- eviction orders,
- bans on entering certain areas,
- seizure of certain items.
The specific measure is always determined by the type and urgency of the danger to be averted.
Form and Justification
The police order must meet certain formal requirements, including written form (exceptions in cases of imminent danger), identification of the addressee, precise description of the measure, as well as a justification of the facts and legal basis. The requirement to provide reasons serves the transparency and legal review of the measure.
Legal Protection Against Police Orders
Challenge and Objection
The person affected may generally file legal remedies against a police order. According to Sections 68 et seq. of the Administrative Court Procedure Act (VwGO), an objection procedure is generally required before bringing an action. Afterward, the action for annulment before the administrative court is available.
Provisional Legal Protection
Especially in the field of police law, there is often a need to seek expedited legal protection pursuant to Section 80 (5) VwGO as interim relief, since the enforcement of the order often has immediate effect (immediate enforceability).
Special Regulations
In certain areas, such as restrictions on assemblies, special legal remedies and divergent procedural regulations apply.
Enforcement of the Police Order
Coercive Measures
Police orders can be enforced by means of administrative enforcement, for example by substitute performance, coercive fines, or direct force. The type of coercive measure is determined by the relevant police and administrative enforcement laws.
Immediate Execution
If there is an imminent danger and the responsible party cannot be reached in time, the authority may carry out the necessary measure itself, immediately, without a prior administrative act.
Relationship to Other Police Measures
The police order is distinct from factual administrative acts (‘factual acts’), such as hazard prevention measures without regulatory content (e.g., mere warnings). It is also to be distinguished from the general order, which is directed at an open or defined group of addressees, as well as from standard police measures pursuant to Sections 13 to 17 of the police laws (such as identity checks, eviction orders, securing property).
Limits and Supervision of the Police Order
Protection of Fundamental Rights and Constitutionality
Police orders regularly encroach on fundamental rights (for example: Art. 2, Art. 8, Art. 13 of the Basic Law). Such official interventions therefore require a statutory basis. The implementation and enforcement practices are subject to judicial scrutiny, especially by the administrative courts.
Prohibition on Individual Laws
Measures that are directed only at individual addressees and would have the regulatory content of a law are inadmissible (Art. 19 (1) sentence 1 GG – prohibition on individual laws).
Examples of Application
Police orders are frequently applied in daily life. Examples include:
- The police prohibition of a demonstration based on a risk forecast,
- the obligation to remove a road traffic hazard vehicle,
- an order to eliminate a source of pollutants in public areas,
- obligation to secure a construction site in case of acute danger.
Scholarly Discussion of Police Orders
The police order is the subject of extensive academic discussion, particularly regarding the application of the disturber principle, the limits of administrative discretion, and the requirements of definiteness and proportionality of measures.
Summary
The police order is an essential instrument of hazard prevention under police law. It enables police authorities to act quickly and purposefully against specific dangers in individual cases, but is subject to strict statutory requirements, formal stipulations, and judicial review. Addressees can defend themselves against police orders using the legal remedies available under administrative law. High standards of the rule of law and protection of fundamental rights must always be ensured.
Note: The statements made refer to the legal situation in Germany and may be subject to specific adaptations depending on the federal state.
Frequently Asked Questions
What formal requirements must be observed for a police order?
Certain formal requirements must be met for a police order to be effective. In principle, the requirement of written form applies, as the order must be communicated to the addressee in a clear and comprehensible manner (Section 37 (2) VwVfG). The order must identify the authority as well as the addressee, describe the facts in detail, and provide a detailed justification for the police intervention. Furthermore, the legal basis, the measure ordered, information on legal remedies, as well as date and signature are required. The inclusion of determinations, regulations, and possible ancillary provisions is also necessary. The specific justification (Section 39 VwVfG) enables the addressee to comprehend the scope and lawfulness of the measure. By way of exception, an oral order may be permissible, particularly in cases of imminent danger; it must be confirmed in writing as soon as the purpose permits.
Under what conditions is a police order lawful?
A police order is lawful only if it fulfills the requirements of the relevant police law. This includes in particular the formal and substantive lawfulness requirements: The competent police authority must act (error of prohibition excluded), and the principle of definiteness (Section 37 (1) VwVfG) must be observed. Substantively, a lawful order requires that a specific danger to public safety or order exists, that police discretion is properly exercised (free from discretionary error), the principle of proportionality is observed (suitability, necessity, appropriateness of the measure), and the correct addressee (disturber principle or emergency assistance) is selected. The measure must also be aligned with the principle of legality as well as the relevant specific and general preventive provisions (e.g., Sections 3, 10-13 of the Police Act of the respective federal state).
What legal remedies are available against a police order?
Legal remedies under the Administrative Court Procedure Act (VwGO) may be lodged against a police order. The primary remedies are objection (Section 68 VwGO), if this procedure is provided for in the respective state law—in some federal states, the preliminary procedure is excluded (Section 68 (1) sentence 2 VwGO). If the objection is not remedied, a claim before the administrative court is admissible, typically as an action for annulment (Section 42 (1) VwGO). In urgent cases, an application for interim relief (Section 80 (5) VwGO) may also be filed, especially to achieve the suspensive effect of the action, since police orders are often immediately enforceable due to imminent danger (Section 80 (2) sentence 1 no. 4 VwGO). Depending on the content of the order, other actions, such as an action for performance or an action for a declaratory judgment, may also be considered.
When does a police order become final?
A police order becomes final if no or no timely and admissible legal remedies are lodged against it. It then becomes formally final, i.e., it can no longer be contested. Material finality means that the regulation remains ‘binding’ and effective for the person concerned for as long as it is not repealed or amended. As a rule, a final police order can only be revoked, repealed, or eliminated in a restitution procedure under strict requirements. This serves legal certainty, even if an administrative act was possibly unlawful. By way of exception, the revocation of unlawful administrative acts or the withdrawal of lawful administrative acts by the authority can be carried out in accordance with Sections 48, 49 VwVfG or the relevant state law provisions.
Are there cases in which a police order does not have suspensive effect?
Yes, pursuant to Section 80 (2) no. 4 VwGO, objection and annulment actions against a police order do not have suspensive effect in certain cases, particularly when immediate enforcement is ordered in the public interest or to avert a danger to public safety or order. This is often the case with police measures, since the aim is to respond immediately to a danger. However, immediate enforcement must be ordered in writing with special justification (Section 80 (3) VwGO). In this case, affected persons may file an application with the administrative court for the restoration of the suspensive effect (Section 80 (5) VwGO). The court then primarily examines the prospects of success of the main action and conducts a balancing of interests regarding the measure.
What are the consequences of an unlawful police order?
If a police order is unlawful, persons affected can request the revocation of the measure by way of legal remedy. The consequences of an unlawful order are determined by administrative law: As a rule, it is ineffective if it has not become final or is overturned by a court. If the order was null and void from the outset (Section 44 VwVfG), it has no legal effect. If it is merely unlawful but final, it generally remains effective until repealed or revoked. Additionally, unlawful police measures may give rise to official liability claims (Section 839 BGB in conjunction with Art. 34 GG), provided that damage has occurred. Restorative measures (e.g., return of seized items) are also possible if the unlawfulness is established.
When does the effectiveness of a police order end?
The effectiveness of a police order generally ends with its revocation, annulment, satisfaction by lapse of time, occurrence of a dissolving event, or by execution of the measure (achievement of the objective). A police order limited to a specific time period automatically ceases to have effect after the expiration of the period. In the case of measures ordered for danger prevention, effectiveness typically ends with the elimination of the hazard. Furthermore, a final order may be expressly terminated by withdrawal (Section 48 VwVfG) or revocation (Section 49 VwVfG). In any case, the authority is obliged to lift the measure if the hazard situation changes or the measure becomes disproportionate.
