Definition and Concept of the Police Emergency
The term Police Emergency refers to a particular situation of danger under public law, in which police measures are required to prevent an imminent and significant threat to public safety or order, even though the competent authority cannot act in time or other suitable means are unavailable. The police emergency allows state authorities – especially the police – to take legal actions that would otherwise be impermissible under normal circumstances. The regulation of the police emergency can be found in both federal and state legal provisions.
Legal Basis for the Police Emergency
General Framework Conditions
The legal anchoring of the police emergency is based on various laws in the field of police and regulatory law. The essential foundation is formed by the applicable police or security laws of the federal states (e.g., the Police Act of North Rhine-Westphalia – PolG NRW, Bavarian Police Tasks Act – PAG, Berlin General Security and Order Act – ASOG Berlin) as well as supplementary federal regulations (e.g., Federal Police Act, BPolG). The principles of police law are characterized by the so-called principle of opportunity, the reservation of law, and the principle of proportionality.
Statutory Regulations (Illustrative Provisions)
An explicit regulation of the police emergency can be found, for example, in § 16 para. 2, § 18 PolG NRW or § 11 para. 1 PAG. There, police officers are enabled to take measures even against non-responsible parties, provided an imminent danger exists and the requirements of a regulated procedure cannot be met.
Decision-Making Authority
Decisions regarding necessary measures within the framework of a police emergency are generally made by the competent police authorities or their local representatives, who are empowered by law to deal with situations of significant risk quickly and lawfully.
Requirements for the Police Emergency
Immediacy and Significant Threat Condition
A police emergency exists exclusively when there is an imminent danger to important legal assets such as life, health, liberty or significant property. The threat must be of such significance that waiting or an ordinary administrative procedure to avert the danger is out of the question.
Subsidiarity and Inaccessibility of the Responsible Party
Measures based on the police emergency may only be taken if
- the obligated persons (so-called disturbers) cannot be reached, or cannot be reached in time,
- other means to prevent the danger are not possible, and
- the danger can only be averted by urgent police intervention.
Only when the legal state has no regular means of averting danger available can emergency measures be resorted to.
Principle of Proportionality
Even under emergency conditions, the principle of proportionality must always be maintained. The measure must be suitable, necessary, and – weighed against the affected legal assets – appropriate for averting the danger.
Legal Consequences of the Police Emergency
Measures against Non-disturbers
Within the framework of the police emergency, police measures may also be taken against so-called non-disturbers (persons not responsible for the danger) if there are no alternatives for immediate hazard prevention. These include in particular:
- Use of uninvolved persons to avert danger
- Seizure of objects or properties for hazard prevention
- Orders directed at non-responsible persons
Liability and Cost Provisions
Persons who are involved under a police emergency are protected under certain circumstances by compensation regulations. The relevant provisions govern possible compensation claims, for example under state compensation laws or in reference to § 39 Police Act NRW. The involvement must be limited to what is strictly necessary, and the affected person is entitled to reimbursement for any expenditures or damages incurred directly as a result of the police measure.
Restrictions on Fundamental Rights
The police emergency may entail profound encroachments on fundamental rights such as personal freedom (Art. 2 para. 2 GG), property (Art. 14 GG) or inviolability of the home (Art. 13 GG). These interventions must be provided for by law and are subject to strict proportionality review and judicial oversight.
Distinction from Other Legal Institutions
Difference from Imminent Danger
Imminent danger refers to situations in which waiting for a judicial order to avert a threat is not possible, and the police act immediately to protect legal interests. The police emergency expands on this by granting authority to take measures even against third parties (non-disturbers).
Distinction from State of Disaster
The state of disaster is an independent legal institution signifying an even broader threat situation. While the police emergency often relates to a spatially and factually limited event, the state of disaster encompasses widespread major loss situations that require the coordination of special rescue and aid services.
Practical Applications of the Police Emergency
- Evacuation of uninvolved persons in the area of a fire or explosive ordnance discovery
- Seizure of private vehicles to eliminate dangerous situations when other vehicles are not available
- Securing buildings at risk of collapse by accessing neighboring properties
Practical application requires particular care and documentation from the involved police officers, as subsequent reviews of lawfulness are frequent.
Legal Protection and Control Mechanisms
Legal remedies for affected persons
Persons affected by police emergency measures can subsequently have the legality of the measures reviewed by the administrative courts. In addition, if provided by law, they are entitled to appropriate compensation.
Administrative and Judicial Review
Measures taken under a police emergency are subject to subsequent review by the competent police or regulatory authority and judicial review, in which the requirements of the principle of proportionality and adherence to statutory conditions are examined in detail.
Literature and Further Regulations
- <a href="https://recht.nrw.de/lmi/owa/brtextanzeigen?v_id=10000000000000000454″>Police Act NRW – PolG NRW
- Bavarian Police Tasks Act – PAG
- Kahl/Wieland, Police and Regulatory Law, 9th ed.
- Gusy, Police Law, 10th ed.
The term Police Emergency is one of the key institutions of German police and security law and ensures the ability of state authorities to act in existential emergency situations. The complex regulations and far-reaching consequences for affected persons make precise knowledge of the statutory foundations and legal protection options essential.
Frequently Asked Questions
What is the legal basis for ordering a police emergency?
The legal basis for the police emergency is primarily found in the respective state law, as police law in Germany is a matter of state law. The core provisions are in particular the state police acts, which provide specific regulations for atypical situations of danger where regular administrative measures are insufficient. Generally, the police acts contain special provisions (e.g., § 11 SOG Hamburg, § 9 SOG Schleswig-Holstein, Art. 10 PAG Bayern) governing measures in the event of a police emergency and specifying both the requirements and the scope of permissible interference. These provisions exceptionally enable the police, under certain conditions, to resort to uninvolved third parties or further restrict fundamental rights, if the threat situation makes this indispensable.
What prerequisites must be met for a police emergency to be assumed?
A police emergency exists only if there is a present significant danger to important legal interests – such as life, bodily integrity, or essential institutions of the general public – and the necessary measures for prevention cannot be taken within the usual legal framework, especially not against the actual disturber. A crucial prerequisite is that a significant danger is imminent or has already occurred, and that there is otherwise no other reasonable way of averting the danger. Typical examples are natural disasters or severe accidents and damage situations in which the police must rely on the help of third parties because their own resources are insufficient.
What measures are permissible within the framework of a police emergency?
Within the framework of a police emergency, measures may be taken that go beyond the otherwise permissible extent of police intervention if they are absolutely necessary to avert the acute danger. The police may also call upon non-disturbers – that is, uninvolved third parties – for assistance, such as providing tools, means of transport, or other urgently needed items, and, if necessary, even their labor. However, every measure is subject to the principle of proportionality, so the least severe among several suitable means must be chosen and burdens are to be minimized as much as possible. The involvement of third parties is generally subsidiary, meaning it is only permissible if measures against the disturber are impossible, unreasonable, or unsuccessful.
What legal consequences result for persons affected by measures under the police emergency?
Affected persons, especially uninvolved third parties who are called upon within the framework of the police emergency, are subject to temporary restrictions of their fundamental rights, in particular the freedom of property and, where applicable, personal liberty. However, the police acts regularly provide for compensation schemes: for example, if property is seized or a special burden is imposed, those affected generally have a claim to appropriate compensation. The intervention must be ordered and justified in writing, and affected persons are generally entitled to legal recourse to have measures reviewed in court.
Is there a time limit for measures under the police emergency?
Measures under the police emergency must always be limited in time to what is necessary to avert the danger. This means such extraordinary measures are only permissible for as long as the acute danger exists and the requirements for the police emergency are met. Once the emergency ceases, all interventions must be terminated immediately and unlawfully claimed items returned, unless justified on other legal grounds. The police are obliged to regularly check whether the emergency conditions still exist, to prevent excessive restrictions of individual rights.
What monitoring and legal protection options do affected persons have in a police emergency?
Even during a police emergency, monitoring and legal protection options remain in place. Those affected may subsequently have the legality of police measures reviewed in court proceedings, especially by filing a lawsuit before the administrative courts. In urgent cases, interim legal protection (§ 80 VwGO) is available. The requirement for effective legal protection under Art. 19 para. 4 GG also applies in exceptional cases, as does the principle of proportionality and the binding nature of law for the police. In addition, it is possible to assert claims for compensation and, if applicable, damages.
