Compulsory fire brigade

A compulsory fire brigade is a public fire brigade . It is set up when a volunteer fire brigade cannot be established and fire protection cannot therefore be guaranteed. Suitable persons (especially those who are capable of serving and who have been trained) are then obliged to do fire service. The fire service in Switzerland is an obligation in most cantons.

On the concept of duty and compulsion

The term duty is often equated with compulsion or is also perceived as such. Forced labor is fundamentally prohibited by various international conventions. However, certain mandatory services are exempt from this prohibition within defined limits. For example, it is an exception in the Convention on Forced and Compulsory Labor of the International Labor Organization (ILO) from 1930 and in Article 4 of the European Convention on Human Rights .

States that have signed the ILO Convention on the Abolition of Forced Labor from 1957

The following compulsory services are not considered forced labor:

a compulsory service in the military associated alternative military service, such as the civil service as well as paramilitary or paramilitary equipment,
usual civic duties, such as compulsory service in a compulsory or militia fire brigade,
work in the penal system ,
Necessary work in cases of force majeure, for example mandatory clean-up work after natural disasters ( dike assistance ) or the civil service obligation of certain professional groups, such as doctors, truck drivers, etc. in exceptional economic situations ,
Work that serves the immediate good of the community, such as hand and tension services in small communities.

Germany

history

Historically, the compulsory fire brigade in Germany is the forerunner of the voluntary fire brigade. For example, it is documented that the city of Meissen already had an organized fire extinguishing system in the Middle Ages. By law, every citizen was obliged to provide assistance in the event of a fire. Those who resisted were punished either with imprisonment or expulsion from the city.

Around 1835, according to the ordinance of the government of the Duchy of Nassau, mandatory fire brigades had to be set up. Every man between the ages of 20 and 60 was obliged to do fire fighting and had to appear three times a year for a compulsory exercise. Pastors, doctors and teachers were excluded. In the event of a fire, the members of the compulsory fire brigades were not always able to cope with the tasks at hand. This was one of the main reasons that committed citizens gradually founded volunteer fire brigades. A compulsory fire brigade was also provided for in § 67 ff. Of the fire police regulations of the Province of Westphalia issued in 1885 . A historical example is the compulsory fire brigade Weigheim (1888 to 1930), in what is now a suburb of the town of Villingen-Schwenningen , which is also used as the basis for the fire brigade tradition in the twin town that was only unified by the regional reform .

organization

The respective state laws regulate which person can be called upon. For example, this can be any resident between the ages of 18 and 63. Certain groups may be excluded from compulsory service, including: police officers , members of the German Armed Forces , members of the federal police , forest officials and active members of another organization or facility involved in disaster control , as well as those who can claim a reason for refusal to volunteer at a local authority . Health status can also be a reason for exclusion. The state fire brigade laws serve as the legal basis .

Today it is relatively rare that a community is forced to set up a compulsory fire brigade. In the recent past, this step became necessary, for example, when a large number of firefighters left the volunteer fire service in protest. In the future, it may be necessary to set up compulsory fire brigades again, because many fire brigades are often not adequately staffed during core working hours . This happens due to the long distances that fire brigade members travel to their workplaces and due to inconsistent employers who do not release their employees for work despite clear legal regulations (cf. e.g. § 20 BHKG). In addition, there is demographic change.

In some countries - for example in Schleswig-Holstein - the compulsory fire brigade is viewed as an independent form of organization. Other member states such as Baden-Württemberg do not even know the term “compulsory fire brigade” in state law and equate service members of the fire brigade with members of a voluntary fire brigade. The fire brigade that works with conscripts is then also called "volunteer fire brigade" (except in the event that the fire brigade also has a professional fire brigade department ; then the name is limited to "fire brigade").

Both a fire service obligation only for men and a fire service charge as a replacement service violate the prohibition of discrimination under Article 3 Paragraph 3 of the Basic Law in a decision of the Federal Constitutional Court of January 24, 1995 (Az .: BvR 403 and 569/94) . In addition, fire extinguishing is in the public interest, for which only general taxes are to be used.

Examples

The following mandatory fire departments currently exist:

Fire brigade Burg (Dithmarschen) in Schleswig-Holstein (compulsory fire brigade since 2009 after mass resignation)

Fire brigade Friedrichstadt in Schleswig-Holstein (compulsory fire brigade since 2016)

Fire brigade Grömitz in Schleswig-Holstein (compulsory fire brigade since 2018)

List fire brigade on Sylt in Schleswig-Holstein (compulsory fire brigade since 2005)

The following compulsory fire brigades have existed temporarily in the recent past:

Malchow fire brigade in Mecklenburg-Western Pomerania in 2006
The Kusel fire brigade in Rhineland-Palatinate was temporarily compulsory in 2009
Pietzpuhl fire department in Saxony-Anhalt from 2007 to 2010

Enforceability of the service and assistance obligation

The legal regulations on service and assistance obligations in civil protection law create the necessary legal basis for the legally binding order of the corresponding actions. The legal obligation to provide services and assistance is specified in individual cases by the official act of obligation, so that the addressee is in principle obliged to comply. Nevertheless, additional legal instruments are required to ensure that the obligations are enforced in the event of refusals. For this purpose, enforcement and sanctioning means come into consideration.

enforcement

The binding effect of reference orders is not inhibited by a possible contradiction by the addressee. Although objections generally have suspensive effect according to Section 80 (1) sentence 1 VwGO, this does not apply in cases where immediate enforcement is in the public interest or in the overriding interest of a party concerned by the authority that issued the administrative act or about the objection has to decide is specially arranged. The authority has to justify this decision in writing. However, a special justification according to Section 80 (3) sentence 2 VwGO is not required if the authority takes an emergency measure designated as such in the public interest as a precautionary measure in the event of imminent danger, in particular in the event of impending harm to life, health or property. This is particularly important when calling in people for assistance in individual cases. In the case of the obligation to give reasons, however, it will usually remain in the case of the service obligation.

Enforcement is to be distinguished from averting suspensive effect. At this point it becomes apparent that the legal options for enforcing the obligation order are in fact limited. Since the individual obligation can only be undertaken by the addressee himself and only depends on the will of the person liable, it constitutes an unjustifiable act i. S. d. As a result, the authorities' options for enforcement are limited to the ordering, setting and enforcement of a fine. As a last resort, the administrative court can, at the request of the competent authority and after hearing the obligated party, order a substitute compulsory payment if this was pointed out when the penalty payment was threatened and the penalty payment is irrecoverable. An actual enforcement of real services and assistance is therefore factually and legally not possible. If the obligated party refuses to implement his duty, he can only be stopped to act with the help of the measures mentioned, but without the actual fulfillment of the obligations can be achieved with certainty in the event of a total refusal. Finally, it must be taken into account that the reservation of the reasonableness of the enforceability of service and assistance obligations sets limits. In the case of those involved in individual cases, this is expressis verbis in the legal regulations: The use of and consequently the execution of assistance is excluded in the event of personal danger. Since there is de lege lata a lack of a sufficient legal basis for the obligation to perform tasks at risk to oneself, the enforcement of measures by persons obliged to do duty at risk to themselves is also ruled out. In this respect, obstacles to effectiveness in civil protection can arise if the staff is involuntarily obliged and there is a lack of willingness to consistently and necessary fulfill their tasks.

sanctioning

The binding effect of the reference orders can in principle be underpinned by an administrative offense and criminal sanctioning of refusals. For this purpose, there are regulations in the fire and disaster protection laws of the federal states, according to which the willful or negligent non-compliance with obligations to provide services and assistance is an administrative offense. Consequently, sanctions in the form of fines are possible.

Furthermore, criminal sanctions can also be considered, since failure to provide assistance is punishable under Section 323c of the Criminal Code. According to this, anyone who does not provide assistance in the event of an accident or common danger or hardship can be punished with imprisonment for up to one year or with a fine, although this is necessary and can be expected from the circumstances, in particular without significant personal risk and without violating other important obligations. Finally, refusal to provide service and assistance is a real omission offense i. S. v. Section 13 of the Criminal Code is conceivable, as the obligation to provide service and assistance can justify the legal obligation to avert damage and thus a guarantee. If the necessary measures are neglected and the offense of a commission is thereby fulfilled, the criminal liability for failure to act comes into consideration.

Austria

In the history of the Austro-Hungarian monarchy , compulsory fire brigades played a not insignificant role in fire protection. In some areas of the monarchy there were compulsory fire brigades in significant numbers. The ratio of volunteer to compulsory fire brigades around 1900 was about two to one. Compulsory fire brigades predominated in the Hungarian half of the empire and in Galicia .

There are currently no compulsory fire brigades in Austria. In accordance with the fire brigade laws of individual federal states, the mayor can call on any resident of a community who is qualified to belong to a compulsory fire brigade . An overview of the regulations of the individual federal states if a voluntary fire brigade has too few members or does not come about for other reasons:

Burgenland : Since the Fire Brigade Act 2019, there are no compulsory fire brigades in the state.

Carinthia : According to § 3 of the Carinthian Fire Brigade Act, a fire protection service can be set up by a resolution of the municipal council , for which municipal citizens are required to be called upon. A fire protection service is in some cases on an equal footing with the voluntary fire brigade, so it has a leader who is equivalent to the fire brigade commander and must hold regular exercises ( Section 44 ).

Upper Austria : The currently applicable Upper Austria . Fire Brigade Act 2015 does not provide for any mandatory fire brigades.

Salzburg : Section 18 of the Salzburg Fire Brigade Act 2018 provides for the establishment of a compulsory fire brigade in the event that a volunteer fire brigade does not come into being and a professional fire brigade does not exist. The fire brigade members are obliged by the community. If necessary, the organization should be based on the rules for volunteer fire brigades.

Styria : The Styrian Fire Brigade Act currently in force does not provide for compulsory fire brigades.

Lower Austria : The regulation regarding compulsory service was deleted from the Fire Brigade Act in 2000.

Tyrol : According to Section 5 of the State Fire Brigade Act, in municipalities without a professional fire brigade, in which it is not possible to voluntarily join the community to form volunteer fire brigades, the municipal council must decide to set up a compulsory fire brigade. The mayor has to select community citizens between the ages of 18 and 50 for the compulsory fire brigade. Exceptions are federal and state employees, if their service authority does not agree to the appointment, employees of transport and supply companies as well as religious servants of all legally recognized churches and religious societies.

Vorarlberg : Section 36 Fire Police Regulations stipulate that the local fire brigade is usually formed from volunteers. However, in the event that the prescribed minimum strength of the local fire brigade cannot be achieved in this way, the mayor has to oblige other people to serve as fire brigade. It is provided that only male community citizens with permanent residence in the community between the ages of 18 and 60 can be obliged. The homeowner must perform the service per household, younger residents are preferable to older residents. Community citizens who work outside the community are expressly excluded. Members of the army, the health service, the police and pastors are exempt.

Vienna : The entire Vienna city area is looked after by the Vienna fire brigade . In addition, there are voluntary fire brigades, an obligation to fire service is not provided.

In Austria, these regulations are insignificant in practice, if they exist, since most municipalities cover fire protection with voluntary fire brigades or in a few large cities with professional fire brigades . In some federal states, the establishment of a compulsory fire brigade becomes obsolete if the fire brigade of a neighboring municipality takes over the tasks, such as the voluntary fire brigade of the Pöllau municipality is responsible for fire protection in all locations in the entire valley. Only in the Tyrolean town of Spiss was there brief consideration in 2012 to set up a compulsory fire brigade, as there was a mass exit due to discrepancies.

Switzerland

The political system in Switzerland is shaped in many areas by the militia principle , which is why everyone is required to do fire service, regardless of whether they are men or women - Swiss or not. In contrast to Germany and Austria, the compulsory fire brigade, in Switzerland called the militia fire brigade, is the normal state with a few exceptions. There are currently around 1,500 fire brigade corps and around 95,000 firefighters, of which only around 1,200 serve in professional fire departments. However, there are exceptions, e.g. B. in the cantons of Zug and Zurich and in the places where professional fire departments exist. If a fire brigade does not find enough people who would like to do the service without coercion (“voluntarily”), it can carry out compulsory recruitment. These are not very popular, however, since the firefighters recruited in this way are usually less motivated and often (have to) leave the fire brigade again soon. Anyone who does not do fire service has to pay a replacement fire service charge. This is collected together with the council tax.

In the canton of Solothurn, compulsory service is described as follows:

Section 76 of the Building Insurance Act

Men and women are required to do fire service in the community of residence.
The fire service obligation consists in the personal performance of the fire service or in the payment of the replacement tax. The municipal authorities responsible for the recruitment and classification of the conscripts decide on the type of compulsory service. (...)

How the militia fire brigades work

The militia firefighters go about their jobs as normal and are only active in the fire brigade during exercises and operations. A militia base fire brigade with police extinguishers is on call as the last preliminary stage to a professional fire brigade . A group of specially trained police officers first move to the scene of the incident, while the fire brigade arrives a short time later. In special situations (large events, demonstrations, etc.) the fire brigade must take over the on-call duty. For the firefighters affected, this is almost like a “professional fire brigade”.

Web links

Individual evidence

↑ https://web.archive.org/web/20110604103218/http://www.ilo.org/ilolex/german/docs/gc029.htm

↑ https://www.ilo.org/global/lang--en/index.htm

↑ https://dejure.org/gesetze/GemO/10.html

↑ Convention 29 of the ILO on Forced and Compulsory Labor 1930 ( Memento of June 4, 2011 in the Internet Archive )

↑ Franz-Josef Sehr : The founding years of the volunteer fire brigade Obertiefenbach . In: Yearbook for the Limburg-Weilburg district 1995 . The district committee of the district of Limburg-Weilburg, Limburg-Weilburg 1994, p. 170-171 .

^ Villingen-Schwenningen: Help in emergencies for 125 years, Schwarzwälder-Bote, April 17, 2013