Concept and Definition of Special Authority
Die Special Authority is a term commonly used in law, referring to the assignment of a specific power to a natural or legal person that goes beyond the general legal framework. Special authorities characterize a legal empowerment that is granted to certain groups or institutions in specific situations, through special laws or regulations. These special powers go significantly beyond general rights and are often found in public law, criminal law, police law, administrative law, or tax law.
A special authority can be granted either permanently or temporarily and is usually tied to specific conditions or purposes. In contrast to general authority, which is open to all within the legal order, special authority designates a legally narrowly defined scope of action.
Legal Basis of Special Authority
Public Sector
In the public sector, special authorities form an essential part of numerous legal provisions. These include, among others, police law, criminal procedure law, as well as special hazard prevention regulations. Example: Section 81a of the Code of Criminal Procedure (StPO) grants doctors, upon order, special intervention powers to conduct physical examinations of suspects. Example: State police laws contain special authorities that allow police officers to enter homes or search persons in cases of imminent danger. Example: Specific special powers for tax authorities to search business premises in cases of tax offenses.
Private and Civil Law
Special authorities can also be provided for in civil law, for example through court orders granting an executor or an estate administrator extensive decision-making powers. Agents of a company receive special powers for representation or for concluding specific legal transactions through a written individual authorization. Special powers of attorney in corporate law are a common instrument for granting special authorities outside the general scope of management’s actions.
Special Administrative Law
In addition to general regulations, administrative law, such as in the field of environmental or construction law, provides for a multitude of special statutory intervention powers. These include, for example, special rights for authorities to access property, conduct inspections, or temporarily secure objects.
Limits and Monitoring of Special Authorities
The granting of special authorities is often subject to strict legal oversight to ensure compliance with fundamental rights and legality. The principle of proportionality as well as rights to judicial protection ensure that individual rights are only restricted by special authorities to the extent required and appropriate for the intended purpose.
Binding to Law and Proportionality
Special authorities must always be based on a statutory foundation. While general powers are applied within the framework of the applicable legal order, special authorities must derive from a specific law or an explicit administrative act. The application must not be arbitrary, but requires a careful examination of the legal prerequisites.
Legal Protection Against Abuse
Affected individuals generally have the right to lodge legal remedies against the application or granting of special authority, such as filing an objection or a lawsuit before the administrative courts. In this way, it is ensured that special authorities are not used unlawfully or excessively restricted.
Types of Special Authorities
Special authorities can be classified according to various criteria, for example by their content, scope, or duration.
By Content
Intervention Rights: For example, allow authorities to enter homes or seize items when necessary for hazard prevention. Order-Issuing Powers: Enable a person to issue instructions to others within a defined framework. Action Powers: Allow the performance of specific actions, for instance, searches or medical interventions.
By Scope
Powers Related to Individual Cases: Granted specifically for a particular occasion or individual case. Permanent Powers: Apply for an indefinite period as long as the legal basis exists.
By Duration
Temporary Special Authorities: They are tied to a specific period or a special situation. Permanent Special Authorities: They exist independently of a particular occasion and can be revoked if the legal requirements cease to apply.
Distinction from Other Forms of Authority
The special authority differs from the general authority, which grants a broader scope of action and is applied in less regulated areas. While general authorities provide comprehensive or abstract permission to act, special authority is characterized by its specifically regulated scope and specific legal background.
Compared to exceptional authority, which generally refers to particularly far-reaching or exceptional rights, special authority is often restricted to specific circumstances or groups and is more precisely regulated.
Significance of Special Authority in Legal Practice
Special authorities play a central role in the rule of law, effectively protecting certain legal interests and adapting state actions to special situations. At the same time, they are an essential tool for regulating complex administrative and criminal proceedings and serve to balance individual rights with the public interest.
A precise understanding of the factual and legal prerequisites for the exercise of special authorities is indispensable for authorities and beneficiaries, as well as for the affected individuals, to be able to assess their rights and obligations.
References and Further Sources
Special authorities are discussed and commented on in statutory commentaries, monographs on administrative law, as well as in relevant rulings of superior courts and administrative regulations. For practical purposes, the evaluation of current case law is crucial to clarify the scope and limits of these special rights. Information in this regard is provided, among others, by:
- Code of Criminal Procedure (StPO)
- State Police Laws
- Administrative Procedure Act (VwVfG)
- Federal Constitutional Court decisions on intervention powers
- Commentary literature on administrative law
In summary the special authority refers to the statutory empowerment for specific actions or measures, the scope and application of which are expressly and conclusively regulated by law. It serves as an important regulatory instrument in the legal system and is subject to strict requirements of legality and proportionality.
Frequently Asked Questions
What are the legal foundations governing the use of special authorities?
Special authorities are regulated in various areas of law by specific statutes, regulations, or administrative provisions. In police and public order law, the relevant legal bases are found in the respective state police laws as well as in criminal procedure law, in particular the Code of Criminal Procedure (StPO). For particular professional groups such as customs, tax investigators, or intelligence services, the use of special authorities is precisely governed by specialized laws (such as the Customs Investigation Service Act, the Federal Criminal Police Office Act, or the Federal Office for the Protection of the Constitution Act). In all cases, special authorities may not be exercised generally, but only within the framework of explicit authorization and in compliance with specific procedural rules. Furthermore, the fundamental rights of those affected must be observed, especially the principle of proportionality, purpose limitation, and parliamentary oversight.
What are the requirements for the application of special authorities?
The authorization to apply special authorities is regularly linked to strict substantive and formal prerequisites. This always includes the existence of a statutory authorization, legitimizing the authority’s action. Additionally, there must be a specific danger, an initial suspicion, or other legally defined grounds for the use of special authorities, such as to protect significant legal interests or clarify serious offenses. Moreover, procedural rules must be observed, for example in the context of a judicial order or subsequent judicial review. The measure must always be proportionate, necessary and suitable to achieve the intended aim.
To what extent are special authorities subject to judicial oversight or approval?
Many special authorities, especially when they involve interventions in fundamental rights—such as the secrecy of mail, post, and telecommunications (Art. 10 Basic Law) or the inviolability of the home (Art. 13 Basic Law)—require prior judicial authorization or at least subsequent review by an independent court. This serves to uphold the rule of law and prevent abuse. The specific requirements for judicial approval are determined by the respective legal bases. For example, a search during ongoing investigations generally requires a court order (Section 102 StPO). Exceptions are allowed only in cases of imminent danger, in which case subsequent judicial review must be conducted.
Are affected persons obliged to tolerate or cooperate in measures based on special authorities?
Whether and to what extent those affected are obliged to tolerate or actively cooperate in a measure based on special authorities is regulated differently by law. While certain measures—such as home searches—can generally be carried out without the cooperation of the affected person, other cases provide for explicit tolerance or cooperation obligations, for example the obligation to present certain documents or provide information. However, the obligation to actively cooperate must not violate the privilege against self-incrimination (nemo tenetur se ipsum accusare, Art. 1 Sec. 1 GG in conjunction with Art. 2 Sec. 1 GG), meaning no one can be forced to incriminate themselves.
What legal remedies are available against measures involving special authorities?
Persons affected by the use of special authorities generally have the option to lodge legal remedies against the measures affecting them. Depending on the type of measure, this can include a complaint to the competent court, immediate hearing within a judicial procedure, or assertion of declaratory and injunctive claims. For instance, a complaint against a judicial search warrant is admissible pursuant to Section 304 StPO. The legality of the measure can also be subsequently reviewed in the main proceedings. In administrative procedures, objection and action for annulment are further options. The affected persons must also be informed about existing legal remedies and deadlines.
How is the principle of proportionality ensured when applying special authorities?
The principle of proportionality is a central constitutional requirement and stipulates that any measure involving special authorities must be suitable, necessary, and reasonable to achieve its intended purpose. Suitability means that the measure must be capable of contributing to the achievement of the goal; necessity, that no milder, equally effective means are available. Ultimately, the measure must not be disproportionate to the intended purpose (reasonableness). State authorities are obliged to examine and document this in detail before each use of special authorities in each individual case. Compliance with this principle is regularly subject to judicial review.
Are there special documentation and reporting duties when applying special authorities?
Yes, legislators have provided for comprehensive documentation duties to protect the fundamental rights of those affected and to enable effective legal oversight. As a rule, authorities must create written or electronic records of each application of special authorities. These must at a minimum include the reason, type, scope, duration, involved persons, legal basis, as well as the measures taken and decisions made. Moreover, periodic reports to superior authorities, supervisory bodies, or parliamentary committees are required in certain cases, especially in the case of covert measures or those with significant impact. The documentation also serves to enable the affected persons to assert their rights through legal remedies.
