Preventive Police: Terminology, Legal Foundations, and Functions
The preventive police is a central element of police law and serves to avert dangers before criminal offenses or administrative offenses occur. In contrast to the repressive police, which is responsible for investigating and sanctioning legal violations that have already been committed, the preventive police acts in advance. The task of the preventive police is to identify threats to public safety and order at an early stage and to prevent or eliminate them through suitable measures. This article provides a comprehensive overview of the legal foundations, tasks, and legal bases of the preventive police in Germany.
Definition and Delineation
Definition
The preventive police encompasses all police activities and measures aimed at precautionary danger prevention. The objective of preventive police work is to prevent disturbances and dangers to public safety and order before any harm occurs. It operates within a legal framework derived primarily from the police laws of the federal states and, in certain areas, from federal law.
Distinction from the Repressive Police
The preventive police must be strictly distinguished from the so-called repressive police or criminal prosecution authorities. While the repressive police only take action after a harmful event—usually a criminal offense—has taken place, the preventive police is focused on averting specific or abstract dangers. Consequently, the areas of responsibility pertain to different points in time and legal prerequisites.
Legal Foundations
Police Laws of the Federal States
German police law is predominantly the responsibility of the federal states. Each state has its own police law (e.g., the Police Act of North Rhine-Westphalia – PolG NRW, the Bavarian Police Task Act – PAG). These laws define in detail the content, scope, and limits of police powers in the area of danger prevention. The legal provisions include, in particular:
- General authorities for danger prevention (§§ 8 ff. PolG NRW, Art. 11 ff. PAG)
- Collection of personal data (§§ 12 ff. PolG NRW, Art. 21 ff. PAG)
- Removal orders, bans on residence (§ 34 PolG NRW, Art. 16 PAG)
- Search authorizations (§ 41 PolG NRW, Art. 21 PAG)
- Detention (§ 35 PolG NRW, Art. 17 PAG)
Federal Law Provisions
In specific danger situations (e.g., aviation security, railway police, border protection), there are federal regulations, for instance in the Federal Police Act (BPolG) or the Air Security Act (LuftSiG). In these cases, the Federal Police operates with its own preventive powers.
Constitutional Foundations
Preventive police work is bound by constitutional requirements, particularly by fundamental rights (e.g., Article 2 (2) GG – freedom of the person, Article 10 GG – secrecy of mail and telecommunications). Any interference with these rights requires a statutory basis, compliance with the principle of proportionality, and adherence to the rule of law.
Tasks and Responsibilities of the Preventive Police
Danger Prevention
The main task of the preventive police is danger prevention. The term ‘danger’ is defined as a situation in which harm to public safety or order is likely to occur in a specific case. The spectrum ranges from danger forecasts and surveillance to the implementation of preventive measures.
Selection of Disturbers and Responsibility
Police responsibility in the preventive field is generally organized according to the categories of actor-disturber, condition-disturber, and non-disturber. Measures are primarily targeted at the disturber; actions against non-disturbers are only permitted under the strict conditions set out in police law (e.g., in cases of imminent danger).
Intervention Intensity and Legal Protection
All preventive police measures are governed by the principle of proportionality. Measures taken by the preventive police must be suitable, necessary, and appropriate (proportionate in the narrower sense). Those affected may challenge police interventions by means of legal remedies (objection, administrative court action).
Legal Bases of Individual Preventive Measures
Data Collection and Surveillance
Examples include special provisions for data collection, video surveillance, and telecommunication monitoring pursuant to the respective police laws. Interventions affecting informational self-determination are subject to especially strict requirements due to the protection guaranteed by fundamental rights.
Bans on Residence and Removal Orders
The police may prohibit people from being in certain places when this is necessary for danger prevention. The duration and spatial scope of such measures are legally restricted and subject to judicial review.
Detention
A particularly intrusive measure of the preventive police is detention for protection against self-harm or harm to others. This police measure is only permissible under strict statutory requirements and subject to a judicial order or subsequent judicial review.
Relationship with Other Authorities and Institutions
Cooperation with Repressive Authorities
The cooperation and exchange of information between preventive and repressive police authorities are established by statutory regulations. While the preventive tasks are primarily assigned to the regulatory authority or police station, criminal prosecution begins with knowledge of a criminal offense.
Cooperation at the International Level
In the course of European integration and cross-border crime prevention, German preventive police authorities cooperate with foreign police forces and international organizations, such as Europol.
Development and Challenges
Digitalization and New Threat Scenarios
Ongoing digitalization presents the preventive police with novel tasks: cybercrime, digital risk assessments, and the use of new technologies (such as artificial intelligence and biometric surveillance) raise legal and practical questions, especially regarding fundamental rights protection and personal rights.
Legal Reforms and Judicial Review
Powers of the police to take preventive action are regularly reviewed by court decisions (in particular the Federal Constitutional Court). Legislative reforms must always comply with the requirements imposed by fundamental rights. Requirements pertaining to transparency, legal clarity, and proportionality remain fundamental.
References and Bibliography
- Police laws of the federal states (e.g., PolG NRW, PAG Bavaria)
- Federal Police Act (BPolG)
- Basic Law for the Federal Republic of Germany
- Relevant case law of the Federal Constitutional Court (for example, on automated license plate recognition, telecommunication surveillance)
- Scholarly commentaries on police law
Summary
The preventive police is an essential component of the national security framework. It encompasses all measures to counter dangers to public safety and order, based on extensive and detailed legal provisions. The distinction between preventive and repressive police action is of significant practical and legal importance. Ongoing developments in risk potential and technological advances necessitate regular adaptations of the legal framework and constant judicial oversight to ensure the protection of fundamental rights.
Frequently Asked Questions
When and under what conditions may the preventive police intervene?
The preventive police is in principle authorized to take action before a criminal or administrative offense has been committed to avert dangers to public safety or order. The legal framework for intervention by the preventive police is primarily derived from the police laws of the individual states (e.g., the Bavarian or North Rhine-Westphalian Police Act), as well as from special regulations such as the Federal Police Act. The prerequisite for preventive intervention is the existence of what is known as a ‘danger’, whereby a distinction is made, depending on the legal situation and the measure, between a ‘concrete danger’ (sufficient probability of harm occurring in the foreseeable future to a specific legal interest) and an ‘abstract danger’ (a general hazard without reference to a current individual case). Particularly far-reaching measures, such as deprivations of liberty, usually require at least a concrete danger. In addition, the principle of proportionality must always be observed: The measure must be suitable, necessary, and appropriate. The powers of intervention must also be based on a statutory foundation and, depending on the intensity, be subject to judicial review.
What legal limits apply to the preventive police with respect to interventions in fundamental rights?
Measures by the preventive police may interfere with a wide range of fundamental rights – such as the right to personal freedom (Art. 2 II GG), the inviolability of the home (Art. 13 GG), property (Art. 14 GG), or the general right of personality (Art. 2 I in conjunction with Art. 1 I GG). Legally, every interference with fundamental rights requires a statutory basis (the reservation of law), which itself must be in accordance with the constitution. Police powers must comply with the principles of certainty and proportionality, i.e., clearly describe the nature, direction, and scope of the intervention and include appropriate barriers and control mechanisms. Particularly high legal hurdles apply for severe interferences, such as long-term deprivation of liberty (detention): In such cases, a judicial order is generally required. Furthermore, there is ongoing judicial review of police measures (Art. 19 IV GG).
How does the legislative competence in the field of preventive policing differ between the federal government and the states?
Legislative authority for the organization and general tasks of the police, particularly danger prevention and thus preventive police action, lies primarily with the states (Art. 70 ff. GG). Therefore, each state regulates in its police laws when and how its police authorities may intervene preventively. The federal government is only competent where expressly authorized by the Basic Law—such as in the area of the Federal Police (formerly Federal Border Police; Art. 73 no. 9a GG in conjunction with the Federal Police Act). The Federal Police exercises preventive police powers within its specific jurisdiction, such as for border protection, railways, and federal organs. In addition to formal legislative powers, federal and European or international legal requirements (e.g., General Data Protection Regulation, ECHR) must also be observed.
What control and legal protection mechanisms exist against measures taken by the preventive police?
The rule of law ensures that affected individuals have access to effective legal protection against measures of the preventive police (Art. 19 IV GG). Key control mechanisms include judicial protection through actions for annulment or declaratory judgment before administrative courts, with interim legal protection (so-called provisional legal protection, § 80 V VwGO) available if a measure is to be executed immediately. In the case of deprivation of liberty, judicial authorization is required (§ 417 ff. FamFG). Independent parliamentary committees and data protection officers monitor the legality and appropriateness of police measures, especially in the case of covert interventions (e.g., telecommunication surveillance). Police interventions are also subject to documentation and reasoning requirements, enabling subsequent review by the courts.
What legal bases are decisive for the admissibility of specific preventive police measures (e.g., removal order, detention, video surveillance)?
Each preventive police measure must have a specific legal basis, usually provided for in the general police laws of the states. Typical measures such as removal orders, bans on residence, detention, identity checks, searches, or video surveillance (at so-called ‘dangerous locations’) are generally regulated in separate sections or paragraphs of the police acts (e.g., §§ 12, 16, 18, 22, 24 Police Act NRW). The elements of the offense, intervention thresholds, and procedural rules vary depending on the measure and state law. For covert measures or powers significantly restricting fundamental rights, there are typically increased legislative requirements (especially certainty and transparency), and judicial approval requirements often apply (e.g., for longer-term surveillance, living space monitoring).
When is there a ‘concrete danger’, and how is it determined by the police?
A concrete danger within the meaning of police law exists if, in an individual case and in relation to a specific situation, there is a sufficient probability of harm occurring to a protected police interest (such as life, health, property, public order). The police assess this through a forward-looking consideration of the actual circumstances, drawing not only on objective indications but also on experience. The prognosis must not be based merely on assumptions or fears but must be tied to facts. For especially intensive measures such as preventive deprivation of liberty or prolonged surveillance, the law and case law require a particularly qualified danger – such as an ‘imminent’ or ‘urgent’ danger.
Are there overlaps in competence between the preventive police and repressive law enforcement, and how are these legally resolved?
In practice, it is possible for the daily work of the police to involve overlaps between preventative hazard prevention measures and repressive criminal prosecution (the police acting as an auxiliary body of the public prosecutor according to § 163 of the Code of Criminal Procedure). Legally, the decisive factor is the purpose of the measure: If the primary aim is to avert a danger, the actions are governed by the police laws. If the clarification and prosecution of an already committed criminal offense is the main focus, the provisions of the Code of Criminal Procedure apply. In mixed situations, where both purposes are affected, the courts regularly hold that from the moment a specific suspicion of a criminal offense arises, criminal procedural law takes precedence, particularly to protect the rights of the accused and to safeguard judicial authorization for certain coercive measures. In addition, administrative and criminal procedural measures may be permissible alongside each other, provided this is legally established and the principle of proportionality is respected.
