Concept and Legal Foundations of Security Authorities
Security authorities are state institutions whose central task is to avert dangers to public security and order. They represent key bodies of security law in Germany. Their areas of responsibility, jurisdictions, and powers are based on extensive federal and state legal provisions that are significantly shaped by the Basic Law and special security laws.
Definition and Delimitation
The term “security authorities” in a legal context encompasses all authorities responsible for ensuring public security in both preventive and repressive areas. These include, in particular, police and regulatory authorities, constitutional protection agencies, and other institutional bodies tasked with special security duties.
Public security and order
The main asset protected by security authorities is, according to prevailing legal opinion, public security, which is defined as the inviolability of the objective legal order, the existence of the state as well as individual legal assets such as life, health, and property. Public order, on the other hand, comprises all unwritten rules whose observance is considered indispensable for harmonious coexistence according to prevailing social standards.
Legal foundations of security authorities in Germany
Security authorities operate on the basis of a complex network of legal norms. The most important legal sources are the Basic Law (GG), police laws of the federal government and the states, and special legislation such as the Federal Constitution Protection Act.
Constitutional foundations
Basic Law
The Basic Law assigns, in Article 30 GG, the exercise of state powers and the fulfillment of state tasks primarily to the states. However, the Basic Law also regulates the federal government’s competence in certain areas of hazard prevention (§§ 73 ff. GG [in particular for border protection, defense, and protection of the constitution]).
Federal Structure
The organizational structure of security authorities is shaped by German federalism. Thus, there exist both federal security authorities (e.g., Federal Criminal Police Office, Federal Police, Federal Office for the Protection of the Constitution) and state authorities (e.g., State Police, State Criminal Police Offices, State Offices for the Protection of the Constitution).
Ordinary Legislation
Police Law
Police law encompasses all regulations that define the public duties, obligations, and powers of the police. For law enforcement, a distinction is made between the Federal Police (Federal Police Act – BPolG) and the respective state police (state police laws such as BayPAG in Bavaria).
Regulatory Law
In addition, there are regulatory authorities whose areas of responsibility are governed by the regulatory authority laws of the states. Their goal is to prevent or eliminate specific regulatory offences and they intervene in addition to the police authorities, particularly where police powers do not apply.
Constitution Protection Law
The investigation and prevention of efforts hostile to the constitution is the responsibility of the constitutional protection agencies, pursuant to the Federal Constitution Protection Act (BVerfSchG) and the respective state laws. These agencies possess special intelligence powers, but are organizationally and legally strictly separated from the police authorities (the so-called separation requirement).
Principles of intervention and powers
Principle of the rule of law
The actions of security authorities are subject to the primacy and reservation of the law. Every infringement of fundamental rights, such as identity checks, expulsion from a place, or a search, requires a legal basis for authorization. The instruments and level of interference are determined by the principle of proportionality.
Authorization norms and standard measures
Security authorities can resort to statutory standard measures, such as:
- Expulsion from a place
- Detention
- Search powers
- Seizure and confiscation of objects
- Identity check
The specific form and prerequisites of each measure are set out in the relevant laws, which regularly impose strict requirements on justification and procedure.
Types of security authorities under German law
Under current law, security authorities are mainly differentiated into the following types of authorities:
Police
Police authorities are tasked with averting dangers to public security and order and carry out both preventive duties (hazard prevention) and repressive tasks for the prosecution of criminal offenses (law enforcement).
- Federal Police: Responsible for cross-border duties, railway facilities, aviation security, etc. (BPolG)
- State Police: Responsible within the respective federal state; governed by state police laws
Regulatory authorities
Regulatory authorities (e.g., local regulatory offices) are responsible for preventing hazards in the sphere of hazard prevention, particularly where police jurisdiction does not apply. Legal bases can be found in the states’ security and regulatory laws.
Constitution protection agencies
Constitution protection agencies at the federal and state level are tasked with investigating, analyzing, and observing activities hostile to the constitution. Their activities are characterized, in particular, by the separation requirement from the police and the legal obligation to comply with the Federal Constitution Protection Act and data protection regulations.
Special agencies
Depending on the state and scope of duties, there are other special agencies, such as:
- Federal Office of Civil Protection and Disaster Assistance (BBK)
- Federal Intelligence Service (BND)
- Customs authorities (with tasks in the field of cross-border security and criminal prosecution)
Jurisdictions and cooperation of security authorities
Vertical and horizontal cooperation
The allocation of responsibilities between federal and state authorities depends on their respective areas of responsibility. For effective hazard prevention and law enforcement, authorities cooperate both vertically (federal-state) and horizontally (between different types of authorities), with legal bases such as the Act on Cooperation between the Federal Government and the States in Matters of Constitutional Protection (VSG) and various police and data protection laws having to be observed.
Separation requirement
An essential legal principle is the separation requirement, which prescribes the institutional, personnel, and informational separation of police and intelligence services. This serves to protect the constitutional principle that hazard prevention and law enforcement must not be mixed with intelligence methods.
Legal protection and oversight
Legal protection possibilities
Persons affected by measures of security authorities have extensive legal remedies. They may file suit in administrative courts, including applications for interim legal protection. Oversight is provided by courts, especially administrative courts, as well as by parliamentary committees established by special legislation for intelligence services.
External and internal oversight
Security authorities are subject to a variety of control mechanisms:
- Judicial administrative remedy
- Parliamentary oversight via special committees (e.g., Parliamentary Oversight Panel)
- Data protection supervision by independent data protection officers
- Professional supervision by higher authorities
- Internal audits and ombudsman structures
These mechanisms ensure that the actions of security authorities meet the standards of the rule of law.
Summary
Security authorities are central players tasked with maintaining public security and order in Germany. Their legal status, organization, and powers are determined by a complex web of federal and state regulations. The Basic Law, police law, regulatory law, and constitution protection law form the legal cornerstones. Oversight of interventions affecting personal liberty, constitutional standards, and effective legal remedies for those affected characterize the legally and democratically founded structure of security authorities. The division of responsibilities between the federal and state governments, the separation requirement, and diverse control mechanisms ensure a rule-of-law based and transparent hazard prevention in the sense of a democratic security architecture.
Frequently asked questions
Which legal bases govern the tasks and powers of German security authorities?
The tasks and powers of the German security authorities are regulated by a large number of laws and ordinances that differ at federal and state level. Central in this context is the Basic Law (GG), in particular regarding the separation of police and intelligence services (Art. 87 GG as well as the separation requirement from Art. 10 GG). For the police, the Federal Police Act (BPolG) applies to the Federal Police, while the respective state police laws apply to the state police forces. The activities of the intelligence services are governed by the Federal Constitution Protection Act (BVerfSchG), the Military Counterintelligence Service Act (MAD-G), and the Federal Intelligence Service Act (BND-G). Additional regulations apply as set out in the Code of Criminal Procedure (StPO), the Administrative Offenses Act (OWiG), the Residence Act (AufenthG), the Pass Act (PassG), and other special legislation such as the Federal Criminal Police Office Act (BKAG). These laws determine, among other things, jurisdictions, intervention rights, measures for hazard prevention as well as data protection and oversight mechanisms.
In which cases are security authorities permitted to collect and process personal data?
The collection and processing of personal data by security authorities is generally allowed only on a legal basis and in compliance with the principle of proportionality. The key legal bases are set out in the Federal Data Protection Act (BDSG) as well as the respective sector-specific data protection rules, such as the BKAG, BPolG, or BVerfSchG. Data processing is permitted if it is necessary for fulfilling the statutory duties of the security authority, for example hazard prevention, criminal prosecution, or investigation of constitution-hostile activities. In particular, interventions in the right to informational self-determination are justified by special legal provisions on data collection, processing, and storage, provided these are proportionate and serve to protect significant legal interests such as bodily integrity, life, or freedom. These measures are also often subject to judicial or official oversight, as well as review by data protection officers.
What oversight mechanisms exist for monitoring the activities of security authorities?
Oversight of security authorities’ activities is multi-level. On the one hand, there are internal oversight bodies, such as internal data protection and complaints officers and internal audit units. On external levels, there are parliamentary oversight bodies, such as the Parliamentary Oversight Panel of the Bundestag for monitoring the intelligence services at the federal level, the G10 Commission for the supervision of measures under Article 10 GG, police advisory boards, and data protection officers at state and federal level. Furthermore, judicial review by specialist courts (e.g., administrative, criminal courts) or the Federal Constitutional Court is possible, especially where fundamental rights are affected. Numerous measures, such as telephone surveillance or home searches, also require prior judicial authorization or subsequent judicial review.
What legal restrictions apply to the use of technical surveillance devices by security authorities?
The use of technical surveillance devices by security authorities, such as telecommunications surveillance, online searches, or acoustic surveillance of private homes, is subject to strict statutory limitations. The legal basis in particular is the Basic Law, the Code of Criminal Procedure (§§ 100a ff. StPO), as well as specific laws such as the G10 Act (Art. 10 Act). Key requirements are legal necessity, proportionality, and, as a rule, prior authorization by an independent court. A distinction is drawn between preventive and repressive (prosecutorial) measures, with preventive measures often allowed under hazard prevention law (e.g., police laws), while prosecutorial measures are subject to the StPO and its safeguards for fundamental rights. Surveillance is generally only permitted in cases of particularly serious crimes or significant dangers, subject to strict temporal, personnel, and substantive limitations as well as extensive documentation and reporting requirements.
Under what conditions may security authorities conduct overt or covert investigation measures?
Overt investigation measures, such as interviews or seizures, may generally be carried out when there are concrete grounds for suspicion or for hazard prevention according to the applicable legal bases (e.g., StPO, police laws). Covert investigative measures, such as the use of undercover informants, undercover investigators, or surveillance, are only permitted under strict statutory conditions and in cases defined by law. The usual prerequisite is the existence of a specific threat to significant legal interests or suspicion of a serious crime; relevant under the StPO are, for example, § 100f (surveillance) and §§ 110a ff. (undercover investigators), and in police law corresponding special provisions. The use of covert measures usually requires a judicial order or at least approval from a specially authorized office. Special confidentiality, reporting, and subsequent notification obligations to the affected persons also apply in certain situations.
How is the cooperation of security authorities at national and international level legally regulated?
The legal foundations for cooperation among security authorities within Germany are found in the Basic Law (federal structure), federal-state coordination laws (e.g., BKAG, § 2 ff. BPolG), and various cooperation agreements and treaties which regulate the responsibilities and exchange of information between federal and state authorities and their specialized agencies. Internationally, cooperation is governed by bilateral and multilateral agreements, European cooperation (Europol, Eurojust, Schengen Agreement), UN conventions, as well as EU legal instruments such as the JHA directives (police and judicial cooperation). Legal bases for such cooperation include the Europol Act, the INTERPOL Convention, or the Prüm Treaty. The transfer of personal data abroad is also protected by the BDSG and European data protection regulations (GDPR, Law Enforcement Directive) and is subject to strict requirements regarding data protection, purpose limitation, and supervision of the recipient states.
