Definition and legal classification of police warning
Die police warning is an instrument of German administrative offense and danger prevention practice. It allows minor administrative offenses or breaches of police regulations to be sanctioned directly without a formal fine procedure. The warning is primarily regulated in administrative offenses law (§ 56 OWiG) and is also provided for in various state police laws and special statutory provisions. It is a central element of police intervention management and serves to quickly and conveniently influence behavior.
Legal basis of police warnings
Act on Administrative Offenses (OWiG)
In administrative offense law, the police warning is specifically governed by § 56 of the Act on Administrative Offenses (OWiG). This provision allows, in the case of minor administrative offenses, for a warning to be given with or without a fine, instead of initiating formal fine proceedings.
Requirements under § 56 OWiG
- Triviality of the offense: The act must be considered a minor administrative offense. Criteria for triviality include especially the extent of endangerment and culpability, the existence of mitigating circumstances, and the classification of the infringement at the lower end of the fine scale.
- Admission and acceptance: The person involved must accept the charge and be willing to pay the warning fee immediately or within a certain payment period.
- Amount of the warning fee: An amount between 5 and 55 euros is set.
- No serious prior offenses: Repeated or serious offenses regularly exclude application.
Police law basis
Police warnings are also provided for in state police laws as a preventive instrument. They serve the prevention of danger and the regulation of behavior within the framework of direct force or as a milder measure compared to other police actions.
Type of warning without warning fee
In addition to financial sanctions, a warning without the imposition of a monetary amount is also possible. In this case, a formal procedure is generally waived if the oral admonition is deemed sufficient.
Legal nature and effects of the police warning
Not an administrative act
The police warning is generally not an administrative act, as it does not constitute a final regulation of a matter with external effect. Rather, it is an informal form of action without binding effect on further proceedings.
Legal consequence: waiver of fine proceedings
If the person accepts and pays the warning fee, the matter is generally considered legally settled. No fine notice is issued, nor are formal fine proceedings initiated. With the payment, the matter is definitively resolved (effect of procedure completion).
No prior record in registers
Acceptance of a warning does not result in an entry in the fitness to drive register or the central federal register. In the context of traffic law, this means the points account remains unaffected.
Procedure and legal consequences of the police warning
Course of the warning procedure
- Establishment of the administrative offense by the police or competent regulatory authority.
- Offer of warning to the person concerned, usually combined with a warning fee (for example, on site payment by debit card or prompt bank transfer).
- Acceptance or refusal:
– If the person accepts, further prosecution does not occur.
– If refused, formal administrative offense proceedings are initiated.
Options for legal defense
The person concerned is not obliged to accept the warning. Refusal results in the authority initiating fine proceedings, which may also lead to judicial review of the administrative offense.
Distinction from other police measures
Warning vs. admonition
Warning is a measure with legal relevance and connection to an allegation of an administrative offense, often combined with a monetary sanction.Admonition on the other hand, is purely preventive information and influence without immediate legal consequences.
Warning vs. expulsion and order to leave
While the police warning aims to sanction minor offenses, expulsions and orders to leave are used to prevent imminent disruptions of public safety or order and are associated with other legal consequences.
Legal remedies and judicial review
There is no formal legal remedy against the acceptance of a police warning itself, as it is an act of consensus. If the warning offer is refused or not paid in time, once fine proceedings are initiated the legal process to administrative or district courts becomes available.
Specific areas of application
Traffic law
In traffic law, the warning is a frequently used tool, such as for minor speeding violations, parking offenses, or other minor infringements.
Police law in public spaces
State police laws provide for warnings in case of disturbances of public safety, such as noise disturbances, breaches of local ordinances, or general obligations to maintain order.
Juvenile criminal law
In juvenile criminal law, there is also the possibility to issue a warning pursuant to § 14 JGG (Juvenile Courts Act), which, however, is subject to its own legal provisions.
Practical significance
The police warning is a key tool for quickly concluding proceedings in less serious offenses. It helps relieve the burden on the judiciary and allows for a situation-appropriate, flexible response to administrative offenses. This benefits both authorities and the persons involved, as extrajudicial and bureaucratic efforts are minimized.
Literature
- Meyer-Goßner/Schmitt, Code of Criminal Procedure, commentary, latest edition
- Göhler, Act on Administrative Offenses, commentary, latest edition
- Battis/Grigoleit (eds.), Police and administrative law, textbook, latest edition
Note: The police warning is legally complex and depends on the specific circumstances of each case. For a comprehensive evaluation, an individual examination of each case based on the relevant legal provisions is recommended.
Frequently asked questions
What is the legal basis for a police warning?
The legal basis for a police warning is found in particular in the Act on Administrative Offenses (OWiG), especially in § 56 OWiG. This regulates the warning procedure for minor administrative offenses. In addition, specific regulations exist in special laws such as the Road Traffic Regulations (StVO) and other administrative provisions that complement police practice. The police are thus authorized to issue a warning for minor offenses, provided the severity and circumstances of the act allow it and the procedure can be closed at their discretion. A warning may, but does not necessarily have to, be associated with a warning fee. The legal frameworks also require that the person concerned agrees to the warning and, where applicable, to the payment of the warning fee; otherwise, a formal notice is issued.
How does a police warning differ from a report/charge?
A police warning differs significantly from a report, as it is an alternative, simplified procedure for dealing with minor administrative offenses. While a report initiates a formal fine procedure, the warning aims for a quick, uncomplicated resolution of the incident. According to § 56 OWiG, in situations where there is no public interest in further prosecution and the matter is clear, the police can warn the person directly. Only if the individual does not agree to the warning or fails to pay the warning fee is the incident reported and formal proceedings opened.
What legal remedies are available against a police warning?
In the legal sense, particularly for a warning with a fee, there is generally no independent legal remedy as long as the person concerned does not agree and does not pay the warning fee. The warning with fee is based on the principle of consent. However, if the person refuses the warning or fails to pay the warning fee within the set period, formal fine proceedings must be initiated. In these regular proceedings, the usual legal remedies such as hearing, objection to the notice of fine, and, where applicable, judicial review become available. A purely oral warning (without a monetary demand) has no legally binding effect and therefore cannot be challenged separately.
Is the police warning fee relevant for tax or administrative law?
The police warning fee is a public-law monetary payment levied under administrative offenses law. It does not constitute a tax but a sanction for minor administrative offenses. For tax purposes, paid warning fees, such as those in traffic law, cannot be claimed as business expenses (§ 4 para. 5 no. 8 EStG). Under administrative law, payment of a warning fee generally does not have further consequences, such as entries in the fitness to drive register, as long as the amount is paid on time and no fine notice is issued.
Is a police warning recorded in the police clearance certificate or file?
A warning with or without a fee for an administrative offense is generally not entered in the police clearance certificate, as it is not a criminal sanction. Only final judicial convictions under juvenile or criminal law pursuant to the Federal Central Register Act (BZRG) are subject to entry in the certificate. However, in police files, for instance as part of investigative processes, the warning may be documented for a limited time, especially if further action (such as repeat incidents) needs to be checked, but permanent storage as with criminal offenses does not occur.
Can police warnings be considered as prior records in subsequent proceedings?
As a rule, warnings, especially those under § 56 OWiG, are not considered criminal records or prior offenses in the legal sense. They are rather regarded as educational measures enabling an uncomplicated conclusion. In cases of repeat offenses or discretionary measures, a previous warning may be considered by the administrative authority or police in individual cases, for example, to check for repeat offending. However, this usually happens only internally and without formal effects on the criminal or administrative penalty register.
