Protection of public safety and order
The term Protection of public safety and order is a central legal principle in German public order law and a part of police law. It describes the duty of state authorities to avert dangers to public safety and/or public order, thereby safeguarding the legal order and ensuring peaceful coexistence within society. The following section defines the terms public safety and public order, explains the legal framework, and illustrates the actual implementation and significance in various areas of law.
Definition and distinctions
Public safety
Public safety encompasses the protection of the objective legal order, the integrity of individual legal interests (such as life, health, freedom, property), as well as the existence of the state and its institutions. It aims to avert imminent harm to these legal interests or the common good. Public safety is recognized as a superior legal interest and serves as the central basis for intervention, insofar as actual dangers or significant disturbances arise or are imminent.Components of public safety:
- Protection of individual legal interests (life, body, freedom, property)
- Protection of collective legal interests (environment, public facilities)
- Protection of the inviolate nature of the applicable legal order
- Protection of the state and its constitutional order
Public order
Die public order covers all unwritten rules that are considered essential for regulated coexistence within the community and whose violation is likely to seriously disrupt peaceful coexistence. It functions as a catch-all category alongside public safety and is based on non-legal, moral, and social norms whose observance is under the protection of the state.Core characteristics of public order:
- Unwritten rules of conduct outside of formal law
- Social norms and moral concepts of society
- Protection of social coexistence and public peace
Legal basis
Constitutional framework
Der Protection of public safety and order is indirectly guaranteed by the Basic Law (GG). Article 20 (3) GG establishes the binding nature of law and justice for state authority. The state claims a monopoly on the use of force for the protection of the legal order. Fundamental rights such as general freedom of action (Article 2 (1) GG) are restricted in situations of conflict due to the protection of public safety and order.
Police law and public order law
The key legal foundations are formed by the state police acts and the Federal Police Act (BPolG). These laws contain the central enabling provisions for measures to avert danger, provided that the protection of public safety or order is threatened (§ 8 BPolG, § 14 PolG NRW, etc.).Main regulatory contents:
- Definition of police duties: aversion of dangers to public safety or order
- Standard measures: expulsion from a place, custody, securing of items
- General powers: investigative, questioning, control, and coercive powers
Special features in public order law
In public order law – for example, in the Act on Administrative Offenses (OWiG) or in municipal by-laws – the indeterminate legal terms “public safety and order” play a significant role in orders and prohibitions.
Legal basis for intervention and prerequisites
Concepts of danger
Measures to protect public safety and order generally require the existence of a “danger.” In police law, danger refers to a situation where there is a sufficient probability that harm to protected legal interests will occur in the foreseeable future.Distinction between levels of danger:
- Concrete danger: significant probability that damage will occur
- Abstract danger: danger that typically results from certain types of behavior
- Apparent danger: a mistakenly assumed danger that subsequently proves to be unfounded
- Endangerment of public order: disturbance of moral or social norms that ensure social coexistence
Proportionality and protection of fundamental rights
In protecting public safety and order, the principles of proportionality must always be observed: Measures must be appropriate, necessary, and reasonable, in particular must not cause unacceptable intrusions into fundamental rights. Particular significance is attached to the restriction of fundamental rights such as freedom of assembly (Art. 8 GG) and freedom of expression (Art. 5 GG).
Protection of public safety and order in concrete administrative procedures
General administrative action
Authorities can take measures to avert danger on the basis of the general police clause. In urgent cases, expedited measures are also possible. Decisions regarding such measures are usually made within the framework of administrative acts.
Legal protection and judicial review
Measures to protect public safety and order are subject to judicial review by administrative courts. Affected parties can contest sovereign orders through objection and legal action. Administrative courts primarily examine the legality and appropriateness of the measures.
Particular significance in individual areas of law
Law of assemblies
In the law on assemblies, the protection of public safety and order constitutes a permissible basis for imposing restrictions and requirements during assemblies (§ 15 Assembly Act). Public assemblies may be prohibited or subjected to conditions if there is an immediate danger to these protected interests.
Trade law and licensing law for restaurants
Permits for businesses and restaurants can be denied or restricted under § 35 GewO or corresponding state regulations if their operation endangers public safety or order.
Immission control law
Immission control regulations also protect against emissions that could adversely affect the common good, public safety, or order (§ 1 BImSchG).
Critical assessment and current developments
The terms public safety and order are considered indeterminate legal terms and allow for a certain degree of discretion. While the protection of public safety is regarded as relatively clearly defined, the concept of public order is sometimes disputed in case law and legal literature, as it refers to moral and ethical norms that are subject to societal change.
Debate regularly centers on the high importance of individual fundamental rights in relation to the state’s interest in the common good, as well as the need for clear, transparent requirements for intervention to prevent violations of fundamental rights.
Summary
Der Protection of public safety and order is a fundamental pillar of hazard prevention in German public order and police law. It provides the legal basis for a wide range of administrative measures, serves the maintenance of peace and the rule of law, and is situated in the area of tension between state protective claims and individual freedom. A precise interpretation and critical review are essential to ensure that the legal bases for intervention comply with the principle of proportionality and protect social coexistence without unduly infringing on individual freedom rights.
Frequently asked questions
Which legal foundations govern the protection of public safety and order in Germany?
The protection of public safety and order in Germany is regulated primarily through hazard prevention law, whose most important legal sources include both federal and state law. Central to this is the police and public order law of the federal states, which is primarily set out in the respective state police acts (e.g., the Police Act of North Rhine-Westphalia). Federal regulations such as the Basic Law (especially Articles 2, 8, and 11 GG), the Criminal Code (StGB), and the Administrative Offenses Act (OWiG) set the legal framework and establish constitutional limits on interventions. In the context of specific tasks, sector-specific laws also come into play, such as the Residence Act for measures under aliens law or the Infection Protection Act in the health sector. The delineation of federal and state powers is principally based on Articles 30 and 70 et seq. GG. The restrictive principle of statutory reservation for interventions in fundamental rights (Article 20 (3) GG) as well as the principle of proportionality must always be observed.
Under what conditions may the police intervene to avert danger?
A police intervention to avert danger generally requires the existence of a specifically determined danger to public safety or order. The conditions for intervention are stipulated in the respective police law of the federal state. A distinction is made between imminent danger, significant danger, or imminent urgency, each setting different thresholds for intervention. The authority must ascertain the facts, make a risk assessment, and determine whether an actual danger exists. Furthermore, the principle of proportionality (suitability, necessity, appropriateness) and the principle of opportunity must be observed. Fundamental rights may only be restricted on the basis of a law (statutory reservation). The measure must also be directed at the correct addressee (disturber, non-disturber, instigator) and the police’s discretion must be properly exercised.
Who is the addressee of police measures in the context of protecting public safety and order?
The selection of the addressee of police measures is governed by the so-called police law addressee principle, which mainly distinguishes between the conduct disturber (§ 6 PolG NRW), the status disturber (§ 7 PolG NRW), and the non-disturber. A conduct disturber is someone who has caused the specific danger by their behavior. A status disturber is a person who has control over an object that causes danger. What counts is always the legal and actual connection to the source of danger. In exceptional cases, measures can also be taken against non-disturbers (uninvolved third parties), for example, for danger prevention if the danger cannot be averted by other means (§ 9 PolG NRW). In such cases, particularly high requirements apply to the exercise of discretion and the proportionality of the measure.
What is the significance of fundamental rights in protecting public safety and order?
Fundamental rights play a crucial role in the protection of public safety and order: Any official act that restricts fundamental rights—such as personal freedom (Article 2 GG), freedom of assembly (Article 8 GG), inviolability of the home (Article 13 GG), or property (Article 14 GG)—is subject to the statutory reservation (Article 20 (3) GG). Police interventions must generally be based on explicit legal authorization and must be proportionate. This means that interventions must be suitable, necessary, and appropriate. In addition, the interplay between police hazard prevention and fundamentally protected individual interests must always be weighed, especially in cases such as identity checks, expulsion orders, searches of residences, or measures depriving liberty.
What role does the principle of opportunity play in police actions?
The principle of opportunity dictates that the police generally have discretion in hazard prevention as to whether and how to act. There is no strict duty to intervene with every danger to public safety and order; instead, there is a margin of discretion that is derived from the respective police act. Officers must dutifully decide whether a measure is required or whether alternative solutions are preferable, especially with respect to proportionality and potentially affected fundamental rights. However, the principle of opportunity reaches its limits with so-called mandatory measures, for which the law specifically requires action in certain cases (principle of legality—particularly in repressive action).
What legal remedies are available to persons affected by police measures?
Those affected by police measures can defend themselves using various legal remedies, in particular by filing an action for annulment under § 42 VwGO before administrative courts to overturn the measure or to have its illegality established. In addition, interim legal protection under § 80 (5) VwGO (application for restoration of the suspensive effect) is available if immediately enforceable orders have been made. Furthermore, in the case of serious infringements of fundamental rights (e.g. deprivation of liberty), complaints may be lodged with the local court. Claims for damages may also be asserted before the civil courts. Particularly important is the fact that direct force or other infringements of fundamental rights are subject to judicial review and that, in the event of violations, an application can be made to establish the illegality of the measure. In addition, affected persons have a right to information about the data held about them and may request a data protection review.
How does preventive protection differ from repressive protection of public safety and order?
Preventive protection of public safety and order refers to measures to avert danger and is governed by police and public order law. The aim is to prevent dangers to public safety and order before they materialize (preventive action). Typical measures include risk assessments, expulsion orders, seizure of items, or searches of premises for hazard prevention. Repressive protection, on the other hand, aims at prosecuting offenses that have already been committed and is governed by criminal procedure law (in particular, the Code of Criminal Procedure (StPO)). Measures such as arrests, searches for the purpose of securing evidence, or confiscations are taken here for the purpose of prosecution. Distinguishing between the two areas is essential for determining the legal basis for action and the constitutional justification for official measures.
