Definition and Significance of Public Safety and Order
Public safety and order is a central concept in German police and regulatory law. It encompasses legal requirements and objectives that are essential for the functioning of society. The terms “public safety” and “public order” together denote the protected interests safeguarded by police and regulatory authorities. They serve to realize the state’s interest in the prevention and defense against dangers as well as in maintaining an orderly coexistence.
Public Safety
Definition and Components of Public Safety
Public safety is a comprehensive protected interest within police and regulatory law. It comprises three main components:
- Integrity of the objective legal system: Protection of the entirety of all legal norms (criminal law, administrative law, civil law).
- Individual legal interests: Protection of life, health, honor, freedom, and property of the individual from interference.
- Existence of state institutions and their ability to function: Ensuring that state institutions can operate undisturbed and fulfill their tasks.
According to prevailing doctrine and case law, these three areas of protection are of equal value. Public safety is distinct from individual interests by encompassing the collective, general interest in maintaining a functioning and lawful order.
Legal Foundations
The regulations on public safety are primarily codified in the police statutes of the federal states as well as in federal law, such as the Federal Police Act and the Criminal Code. Central is the principle of danger prevention, which stipulates that interventions by police and regulatory authorities are permissible only in the presence of an actual or potential threat to public safety. Case law, especially of the Federal Constitutional Court and the Federal Administrative Court, regularly refines the requirements and limits of these protected interests.
Public Safety in Relation to Fundamental Rights
Measures to maintain public safety often interfere with fundamental rights, especially general freedom of action, freedom of assembly, and the right to property. Such interventions are permissible only if they are proportionate, legally regulated, and necessary for the protection of an important legal interest. Thus, state action is always subject to the requirements of law and fundamental rights.
Public Order
Definition and Distinction from Public Safety
Public order refers to the entirety of unwritten rules whose observance is essential according to prevailing social and ethical standards. While public safety focuses on the violation of legally regulated interests, public order encompasses behaviors that seriously disrupt social coexistence without violating concrete legal norms.
Content and Significance
Public order serves to ensure disturbance-free and peaceful coexistence. It includes, for example, requirements of consideration in public spaces, customs, and morals, as well as minimum moral standards that may change over time.
Legal Criticism and Significance
In legal scholarship, public order in particular is viewed critically due to its vagueness and scope for interpretation. Nevertheless, it remains a recognized protected interest that authorizes police and regulatory authorities to act even against non-prohibited but socially disapproved behaviors, provided a significant disturbance of social peace is to be feared.
Statutory Regulations and Responsibilities
Police Laws of the Federal States
Police and regulatory law is predominantly a state matter. Each federal state has its own specific police law (e.g. North Rhine-Westphalia Police Act – PolG NRW, Bavarian Police Tasks Act – PAG), which regulates the tasks, powers, and boundaries of state danger prevention.
Federal Law Provisions
The Federal Police Act (BPolG) governs the duties of the Federal Police, especially in the areas of border protection, protection of railway facilities and airports, and the prevention of dangers of particular importance. In addition, federal legal provisions, such as in the Assembly Act or Criminal Code, apply, so that danger prevention law represents a comprehensive body of law.
Interventions and Measures within the Scope of Public Safety and Order
Concept of Danger
The foundation for any intervention by regulatory or police authorities is the concept of danger:
- Concrete danger: A situation based on facts in which, with sufficient likelihood, harm to public safety or order is to be expected.
- Abstract danger: A situation in which, according to general life experience, harm appears possible, even if it has not yet occurred in the individual case.
Measures and Powers
When observing the principle of proportionality, police and regulatory authorities may impose restrictions, directives, and prohibitions to protect public safety and order. These include dispersal orders, dissolution of gatherings, custody, seizures, and other orders for the prevention of danger.
Principle of Proportionality and Legal Protection
Every measure in the area of public safety and order must be measured against the principle of proportionality. Legal remedies such as objections and lawsuits before the administrative court provide those affected with legal protection against orders of the police and regulatory authorities.
Distinction from Related Concepts
Safety of the Public vs. Individual Protection
While public safety protects the legal interests of the community as a whole, it simultaneously ensures individual protection from hazards. The interests of the individual and the community may sometimes diverge, for example in demonstrations or events.
Comparison of Public Safety and Public Order
The central distinguishing feature is legal certainty: public safety refers to clearly legally regulated protected interests, whereas public order includes unwritten social rules. Interventions to uphold public order generally require a higher justification threshold.
Practical Significance
Maintaining public safety and order is fundamental for the stability of the democratic constitutional state. Regulatory and police measures within this mandate substantially shape social life by safeguarding protected interests and reducing the occurrence of disturbances and dangers.
Further Reading and References
- Federal Constitutional Court, established jurisprudence on police and regulatory law
- Police laws of the federal states (e.g.: PolG NRW, PAG)
- Federal Police Act (BPolG)
- Commentary on police and regulatory law (various publishers)
These sources provide deeper insights into the legal structure, applicability, and interpretation of the term “public safety and order” in German law.
Frequently Asked Questions
Who is responsible for maintaining public safety and order?
In Germany, the primary responsibility for maintaining public safety and order lies with administrative authorities and the police. The allocation of tasks results from the police laws of the federal states and the Basic Law. The police are responsible for both preventive (danger prevention) and repressive tasks (prosecution of criminal offenses and administrative offenses). Administrative authorities, especially regulatory offices at the municipal level, mainly have preventive duties and intervene in cases of violations of regulatory provisions. Additionally, the public health office or the building authority may act in the field of public safety and order if specific dangers arise, such as epidemic control or structural safety issues. Due to federalism, there are differences in the responsibilities among the federal government, the states, and municipalities. In individual cases, the subject matter and local jurisdiction of the respective authority is decisive, with the police generally taking precedence in emergencies (§§ 1, 3, 11 PolG of the states).
What legal foundations regulate measures for the preservation of public safety and order?
Measures for maintaining public safety and order in Germany are governed by various legal sources. The decisive regulations are mainly contained in the police laws of the states, which specify, for example, police powers for danger prevention (e.g., North Rhine-Westphalia Police Act [PolG NRW], Bavarian Police Tasks Act [PAG]). State regulatory authority laws (OBG) are also relevant. Furthermore, special statutes such as the Infection Protection Act (IfSG) or the Assembly Act (VersG) provide specific powers. At the federal level, the Basic Law is significant, especially the articles on liberty and security (Art. 2, 8, 13 GG) as well as the distribution of competences between the federal government and the states (Art. 30, 32, 70 ff. GG). The Administrative Procedure Act (VwVfG) regulates administrative procedures, while the Act on Administrative Offenses (OWiG) and the Criminal Code (StGB) standardize the sanctioning of violations.
Under what conditions may authorities intervene?
The conditions for official intervention to protect public safety and order are governed by the respective state law. As a rule, there must be a concrete danger to public safety or order. A danger exists if, in the normal course of events, damage to the protected interests (for instance, individual rights such as life, health, property, or the objective legal order) is likely to occur. It is necessary to differentiate between an immediate danger (requiring urgent response) and an imminent danger (risk only appearing in the near future). The principle of opportunity provides authorities with discretion, unless there is an obligation to act (so-called duty to avert danger, principle of legality). Each measure must be proportionate, i.e., suitable, necessary, and appropriate. Statutory legal bases and protection of fundamental rights (e.g., Art. 2, 13 GG) are mandatory.
What legal remedies are available to those affected by regulatory measures?
Those affected by regulatory measures, such as dispersal orders, prohibitions, or administrative fines, have various legal remedies under administrative law. First, they may file an objection against an adverse administrative decision, provided a preliminary procedure is legally required (§ 68 VwGO). In urgent cases, interim relief can be sought before the administrative court (§ 80 para. 5 VwGO for suspension of enforcement, § 123 VwGO for other urgent relief). Once the administrative procedure is complete, judicial proceedings before the administrative court can be pursued. For police actions within criminal proceedings (repressive police measures), there is also the possibility of judicial review under the Code of Criminal Procedure (StPO), e.g., by motion for a judicial decision (§ 98 para. 2, § 101 StPO). Legal protection is available both for procedural errors (procedural mistakes) and substantive errors (unlawfulness of the measure).
How is the distinction made between public safety and public order?
The distinction between public safety and order is of central importance for the legal assessment of official measures. Public safety refers to the protection of the objective legal order, individual rights, and the existence of the state and its institutions. Public order is an unwritten, catch-all provision and refers to the entirety of unwritten rules whose observance is deemed essential according to prevailing social and ethical views to ensure citizens’ coexistence (so-called “good morals”, non-codified values). However, legally relevant measures must be based predominantly on the more clearly defined public safety, as legal protection of public order is subject to strict statutory limitations due to its vague legal concept, and usually requires close scrutiny for compliance with fundamental rights.
What powers does the police have for danger prevention?
The police have a wide range of powers for danger prevention, prescribed by the police laws of the states. Key measures include establishing identity (§ 12 PolG NRW or corresponding provisions in other states), searches (§§ 39 ff. PolG NRW), dispersal orders (§ 34 PolG NRW), taking persons into custody (§ 35 PolG NRW), seizures and confiscations (§§ 43 ff. PolG NRW), and entry and search rights regarding residences (§ 41 PolG NRW, with special regard to Art. 13 GG). The police can also issue directives or orders, such as banning assemblies, issuing road closures, or taking action against specific threats to specially protected legal interests. The use of direct coercion is governed by the police laws in conjunction with the enforcement laws of the respective states. Every intervention must be based on statutory authorization and be proportionate.
