A measure is carried out by the police, among other things, when people violate legal norms (for example the criminal code ). As a rule, the measure encroaches on the fundamental rights of the person. In order to carry this out, the police must have the so-called authorization to intervene , which allows them to intervene in the rights (e.g. the right to freedom of the person ) based on a law .
If there are two legal bases for the encroachment on fundamental rights - one based on police law to avert danger and the other based on the Code of Criminal Procedure for criminal prosecution - the public official can use a single measure (see examples ) to prevent a danger and initiate or continue criminal prosecution. In this case one speaks of a double-functional measure.
The legal basis of the legal intervention and consequently also the opening of legal recourse (administrative or regular legal process) depend on the focus of the measure. Various aspects can be taken into account, for example the subjective direction of the police when taking the measure (repressive or preventive), the observation of the event from the point of view of an objective observer or from the point of view of the person concerned himself.
In jurisprudence it is controversial how individual aspects that lead to a decision on the legal basis are to be weighted. There are also opinions that completely deny the need for a demarcation or suggest other solutions.
Comparison of powers of intervention
For example, some legal norms that enable the police to intervene against people, as well as their comparison in the field of criminal prosecution and hazard prevention.
General investigation clauses
(1) of the Code of Criminal Procedure allows the police to do the following to prosecute criminal offenses:
- The authorities and officers of the police force are required to investigate crimes and issue all non-delaying orders in order to prevent the matter from being darkened. For this purpose, they are authorized to request information from all authorities, and in the case of imminent danger, to request information as well as to carry out investigations of any kind, unless other statutory provisions specifically regulate their powers.
Art. 11 para. 1 of the Bavarian Police Tasks Act (PAG) declares (as an example for other police laws):
- The police can take the necessary measures to avert an existing danger to public security or order (danger) in individual cases, unless Articles 12 to 48 specifically regulate the powers of the police.
A person can be questioned by the police according toAbs. 1 StPO about their personal details:
- If someone is suspected of a criminal offense, the public prosecutor's office and the police officers can take the measures necessary to establish his identity; Section 163a, Paragraph 4, Clause 1 applies accordingly. The suspect may be detained if the identity cannot be established otherwise or only with considerable difficulty. Under the prerequisites of sentence 2, the search of the suspect and the things he has carried with him as well as the implementation of identification measures are also permitted.
In order to avert danger, identification can also be established in accordance with Art. 13, Paragraph 1 of the Bavarian Police Task Act:
- The police can determine a person's identity
- 1. to avert danger,
2. if the person is in a place
- a) of which it can be assumed on the basis of actual evidence that there
- aa) persons agree to commit, prepare or commit criminal offenses,
- bb) people meet without a required residence permit, or
- cc) offenders hide, or
- b) on the person engaged in prostitution,
- 3. if they are in a traffic or supply system or facility, public transport, official building or another particularly endangered object or in the immediate vicinity thereof and facts justify the assumption that criminal offenses are to be committed in or on objects of this type, by the people in or on these objects or these objects themselves are directly endangered,
- 4. at a control point that has been set up by the police in order to prevent criminal offenses within the meaning of Section 100a of the StPO or Section 27 of the Assembly Act,
- 5. in the border area up to a depth of 30 km and on thoroughfares (federal motorways, European roads and other roads of considerable importance for cross-border traffic) and in public facilities for international traffic to prevent or prevent unauthorized crossing of the national border or unauthorized stay and to fight cross-border crime or
- 6. to protect private rights .
(1) of the Code of Criminal Procedure allows security in the following cases:
- Objects that may be of importance as evidence for the investigation are to be taken into safekeeping or secured in another way.
The Bavarian Police Task Act describes the security as follows in Art. 25:
- The police can secure one thing
- 1. to avert a current danger,
- 2. to protect the owner or the rightful owner of the actual violence against loss of or damage to an object, or
- 3. if it is being carried by a person who is detained under this Act or other legal provisions and that person can use the item for
- a) to kill or injure oneself,
- b) harming the life or health of others,
- c) to damage other people's property or
- d) to enable or facilitate the escape for oneself or others.
- A fake ID is used by the police both security (so that the person can not use it more) and provisionally for prosecution ensured (for Evidence backup or recovery ).
- A potential kidnapper is questioned in order to find the victim who is believed to be still alive. Here, on the one hand, the life of the victim is to be saved (averting danger), on the other hand, a criminal offense should also be investigated (finding a witness).
- Ehrenberg, Frohne: Double-Functional Measures of the Prison Police . In: Kriminalistik 2003, p. 737
- Frank Meyer: The continuation declaratory action in criminal procedure law . In: HRRS Karsten Gaede , Frank Meyer, Stephan Schlegel (eds.): HRRS-Festgabe for Gerhard Fezer on his 70th birthday on October 29, 2008 , Hamburg 2008, pp. 131–224 ( PDF of the entire Festgabe: 1.4 MB )