Right of intervention
Intervention rights grant the state the right to intervene in the fundamental rights of citizens . Due to the constitutional reservation of the law , interventions require a basis for authorization in the form of a formal law .
The picture of detention shows the enforcement of detention. In terms of legal consequences, it has more effect than the police-law authorization norm of detention permits. Therefore, in such a case, not only the norm of authorization for detention needs to be examined, but also its enforcement, which results from the norms of coercion. The enforcement of a measure is also part of the right of intervention, but must not be confused with the right to sanction . Coercion ensures that the encroachment on fundamental rights is carried out, but does not sanction misconduct. In criminal law, this is reserved for the court.
Right of intervention
The term “right to intervene” in this form and expression is neither familiar to legal doctrine nor to the majority of legal literature. It is a purpose created by the police, created according to their needs from the assessment of the legal situation, which is usually characterized by mixed situations. These are situations that include both areas of responsibility of the police, namely security and law enforcement. Police situations are not clinically pure procedural law or police law situations, but almost always contain both aspects, the assessment of which depends on a complex legal understanding that, based on constitutional law, ensures prevention and repression at the right time and to the right extent.
The traditional type of police training is based on the classic legal classification, on the one hand administrative law including police and regulatory law, on the other hand criminal, criminal procedure and regulatory offense law. However, it was recognized early on that this structure was ineffective for police needs. The police only know two areas of responsibility in public law: security and law enforcement. It is typical for police work to master both tasks with the same measures, means and encroachments on fundamental rights. Difficulties arise with the similar appearance of measures in their allocation to the respective legal areas.
But this is a mandatory requirement of the rule of law. In addition to the requirement of the tactically correct, police work is characterized by the legal assessment of double-functional task management with special consideration of the citizen's fundamental rights position. In contrast to legal training at universities, it is important that police officers are able to take up complex issues in a minimum of time, to grasp the essential facts and, taking into account the protected legal position of the person concerned, not only tactically sensible, but also legally to decide correctly. The two aspects of the tactically sensible and the legally correct are not mutually exclusive, they are mutually dependent.
The police officer in practice and in training encounters an almost insoluble problem when trying to familiarize himself with the law of intervention or to solve specific legal questions in an emergency: There is hardly any literature, let alone textbooks, that deal with the special subject. He essentially only has the opportunity to “read together” the corresponding commentaries and textbooks for the individual legal subjects. You then have a wealth of detailed knowledge, but without the right to intervene, you are usually not in a position to work through this knowledge structurally or to find out what is common and what separates the two areas of law in the comparison of power norms and to project it onto the respective target of the action plan. The aim of the right of intervention is to achieve this. The legal literature is characterized by a view of the task management. This results in a separation between general administrative law / police law on the one hand and criminal and administrative fine proceedings / procedural law on the other. However, police intervention measures to fulfill these tasks and the protected fundamental rights position of the citizen are inextricably linked. The right of intervention wants to put this aspect in the foreground and also emphasize the service character of police work for citizens in the legal assessment of police situations.
Intervention rights for everyone
The rights of intervention for everyone (Jedermann Paragraph) are based on StPO and BGB . According to this, anyone who has met someone in the act and who is suspected of fleeing or who cannot be identified immediately is authorized to provisionally arrest someone without a judicial order ( (1) StPO). The perpetrator can only be detained until the police arrive. He must not be forced to surrender his personal details. The scope of the right to arrest is determined by proportionality . For this reason, violence may only be used to the extent necessary to prevent the person found in the act from escaping ( necessity ).(1)
- Thomas Rogalla, Felix Zimmermann: A uniform does not entitle you to anything. In: Berliner Zeitung . September 10, 2003, accessed June 8, 2015 .
- Hans Meyer-Mews: The right to arrest - an overview . In: JA 2006 . S. 206–211 , here p. 206 : “The right to arrest is governed by the principle of proportionality, regardless of the other procedural requirements . The use of physical force is therefore only permitted if it is necessary for arrest and a milder means is not available. "