Term and meaning of police powers
Police powers refer to the legally regulated options for action, intervention, and enforcement available to police authorities to fulfill their duties. These rights and obligations of the police are detailed in various legal provisions and serve to protect public safety and order, as well as to avert danger and enforce criminal prosecution. The scope and limits of police powers are essentially determined by the Basic Law, specific state police acts, the Federal Police Act, and criminal procedure law.
Legal foundations of police powers
Constitutional classification
The basis of police powers is anchored in the Basic Law (GG) of the Federal Republic of Germany. Particularly relevant are the articles on the protection of fundamental rights (Art. 1-19 GG), as police measures regularly interfere with these rights. The principle of proportionality (Art. 20 Sec. 3 GG) requires that police interventions must always be suitable, necessary, and appropriate.
Police laws of the federal and state governments
The structure and limitation of police powers are regulated by various police laws:
- State Police Acts (PolG): These regulate the duties and powers of the state police forces within the respective states.
- Federal Police Act (BPolG): The BPolG codifies the powers of the Federal Police, such as in border protection, railway police, and aviation security.
- Code of Criminal Procedure (StPO): For investigative measures within criminal prosecutions, the police’s powers are stipulated in the StPO.
Other special laws
Depending on the circumstances, other laws may also apply, such as the Act on Regulatory Offenses (OWiG), the Assembly Act, or preventive regulatory provisions.
Types of police powers
Police powers are divided into different categories, depending on their objective and the relevant legal basis.
Powers for the prevention of danger
Danger prevention is an original task of the police. Measures are based on a specific danger to public safety or order.
- General powers: For example, establishing identity, issuing dispersal orders, searches, or securing items.
- Special powers: Interventions such as residential searches or taking into custody require heightened conditions, such as imminent danger or a judicial order.
Repressive powers (criminal prosecution)
For law enforcement, the police are authorized to investigate and secure evidence. These measures are mainly regulated in the Code of Criminal Procedure.
- Investigative measures: Questioning, interrogation, surveillance, telecommunications monitoring.
- Coercive measures: Arrest, search, seizure.
Preventive and repressive dual function
The police often operate in what is known as a dual role, meaning that preventive measures and those for law enforcement can overlap, with different legal bases and intervention requirements needing to be observed in each case.
Requirements for police interventions
Concept of danger
Police intervention generally requires the existence of a danger:
- Specific danger: A situation that, if allowed to continue, will with sufficient probability result in harm.
- Abstract danger: A situation that can typically be dangerous, even if in the individual case no specific danger is present.
Principle of proportionality
Every police measure must observe the principle of proportionality. This means:
- Suitability: The measure must be able to further the intended goal.
- Necessity: There must not be a milder but equally effective means available.
- Appropriateness: The intervention must not be out of proportion to the intended purpose.
Rule-of-law safeguards
Safeguards for police measures under the rule of law include, in particular, the requirement for judicial orders (for example, for certain searches), the right to be heard, and the availability of effective legal remedies (e.g. judicial review).
Types of interventions and typical police measures
Identification
The police may establish a person’s identity under certain conditions. This measure is, for instance, permissible if facts justify the assumption that the person has committed a criminal offense or if it is necessary for danger prevention (§ 163b StPO, § 12 PolG).
Searches
Searches are conducted to locate people, items, or evidence. Usually, they require a concrete initial suspicion or a hazardous situation. Home searches are subject to special requirements regarding their order and execution (§ 102, § 103 StPO, state police laws).
Dispersal order and exclusion order
A dispersal order enables the police to temporarily remove individuals from a location to avert dangers or ensure public safety (§ 34 PolG NRW).
Detention
Deprivation of liberty for the purpose of danger prevention or to enforce other measures is only permissible under strict conditions and generally requires a judicial order (§ 35 PolG NRW, § 81b StPO).
Use of force
Police action can be associated with immediate force, i.e., physical coercion. The basis for this is provided by the police laws and the law on the use of coercive measures (e.g. § 58 ff. PolG NRW).
Limits and control of police powers
Protection of fundamental rights
Police powers are limited by fundamental rights under the constitution. Each measure must be examined for its compatibility with these rights.
Legal protection options
Persons affected by police measures can seek legal protection, for example, through objection or legal action before administrative courts. Additionally, there are options for interim legal protection and possibilities to lodge complaints regarding police misconduct with oversight bodies.
Internal and external controls
The exercise of police powers is subject to internal monitoring (e.g., disciplinary supervision) as well as external bodies such as parliamentary oversight committees or data protection officers.
Practical significance
Police powers are of central importance for the functioning of the rule of law, the protection of society, and the maintenance of public order. Their exercise must always strike a balance between effective danger prevention and respect for individual freedoms.
Literature reference: For more in-depth information, the relevant state police acts, the Federal Police Act, the Code of Criminal Procedure, as well as pertinent commentaries and handbooks provide further explanations regarding the scope and limits of police powers.
Frequently asked questions
When may police officers search a person?
A body search by police officers constitutes a significant interference with fundamental rights and is therefore only permissible under the conditions prescribed by law. According to most state police acts (e.g. § 34 PolG NRW) or the Code of Criminal Procedure (§ 163b StPO), police officers may search a person if it is necessary to avert present danger, to protect an individual or third parties, or to prevent or investigate crimes. In criminal investigations, searches may be ordered if facts exist that give rise to suspicion of a criminal offense and the search serves to find evidence, means of committing the offense, or the accused. In urgent cases, the police may act independently; otherwise, a judicial order is required. Especially sensitive are searches that intrude upon intimate areas, which are subject to higher standards. The affected person must be questioned, if possible, about the reason and purpose, and the measure must be proportional and conducted in compliance with data protection.
Under what conditions may the police enter or search homes?
The entering or searching of homes by the police is especially protected under Article 13 of the Basic Law and requires clear legal authorization. In the context of danger prevention, police officers may enter homes if there is a present danger to life, limb, or significant legal interests (e.g. §§ 41, 42 PolG NRW). A search for law enforcement purposes is permissible under §§ 102 ff. StPO only if there are concrete indications of a crime and it is expected that the perpetrator, traces of the offense, or evidence will be found there. In principle, such measures require a judicial order; in emergencies, the police may order them themselves, but a subsequent judicial confirmation is required. The measure must always be proportionate, particularly vulnerable persons must be specially considered, and the principle of proportionality must be strictly observed.
When may the police carry out identification checks?
Identification checks are permitted if there are concrete indications that it is necessary to prevent danger, to prevent criminal offenses, to protect private rights, or to conduct criminal proceedings (§§ 163b StPO, § 12 PolG NRW). At dangerous places or on special occasions such as large-scale events, random identification checks may also be possible, provided state law allows it. The individual is obliged to provide identification and present appropriate documents. If this obligation is not met, the police may take further measures such as a search or detaining the person to determine their identity. The measure must always be proportionate; unlawful or discriminatory ‘racial profiling’ checks are explicitly prohibited.
What rights and obligations exist in case of a provisional arrest?
A provisional arrest is regulated in § 127 StPO and allows police officers – but also private individuals – to detain someone caught in the act with urgent suspicion if there is a risk of flight or the person’s identity cannot be established. The police must immediately take steps to arrange for a judicial review of the detention. The detained person must be informed of the reason for the arrest, their rights (e.g. the right to remain silent, the right to counsel), and the possibility to notify a lawyer. Arrests must not serve the purpose of executing a sentence, but only to secure criminal proceedings or to prevent danger, and must be lifted immediately if their purpose is achieved or the grounds no longer exist.
Under what conditions may the police monitor phone data or communications?
The monitoring of telecommunications by the police constitutes a serious interference with fundamental rights and is only permissible under strict conditions. For criminal investigations, pursuant to §§ 100a ff. StPO, a judicial order is required, which may only be issued in cases of suspicion of specific serious crimes and if other investigative measures are unsuccessful or significantly more difficult. In police law for danger prevention, many states have comparable provisions (e.g. §§ 20a, 20l BKAG). Monitoring must always be proportionate, necessary, and in the public interest. There are also extensive documentation and information obligations towards the affected person unless fulfilling them would compromise the investigation.
What are the legal requirements for temporary custody (detention)?
Police custody is a measure of danger prevention and allows the detainment of a person against their will. The legal basis is, for example, § 35 PolG NRW. Reasons may include prevention of imminent serious crimes, protection of the person from self-harm, or enforcement of a dispersal order. For minors, it can serve the purpose of child protection. The measure must be ordered in writing by the responsible police authority and must be submitted to a judge as soon as possible – generally within 24 hours. The person must be informed of the reasons, and comprehensive information and documentation obligations apply, particularly regarding the purpose of the detention and the available legal remedies.
What limits exist on coercive measures by the police?
Police coercive measures are subject to strict legal constraints. The relevant police law and general administrative enforcement law (e.g. VwVG, PolG NRW, state enforcement acts) form the legal basis. Every use of force must be measured by the principle of proportionality: it may only be applied if a milder alternative is insufficient, must be suitable and necessary, and the harm to the affected person must not be disproportionate to the intended purpose. Special protection provisions exist for particularly vulnerable persons or groups, including children, pregnant women, or people with disabilities. For all uses of force, documentation as well as, if applicable, tolerance and complaint rights of the affected parties must be observed; fundamental and human rights requirements, such as those from Art. 1 and 2 GG or the ECHR, must never be violated.
