Police and regulatory law

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The police and administrative law (often abbreviated as POR, even police law or police emergency law ) includes a part of the German special administrative law , which the security by law enforcement police and emergency authorities has as its object. The term danger refers to the threat of damage to public safety or order . Police and regulatory law regulate the conditions under which authorities may take measures to avert danger and enforce them. It also regulates the liability consequences of hazard prevention measures.

Police and regulatory law encompass numerous sources of law . It is based on the general hazard prevention laws of the federal states , such as the Bavarian Police Task Act (PAG), the North Rhine-Westphalian Regulatory Authority Act (OBG NRW) and the Berlin General Security and Ordinance Act (ASOG). There are also numerous special laws that deal with individual matters in detail. They form the special police and regulatory law and partly fall within the legislative competence of the states, partly that of the federal government . The special regulatory law includes, for example, border protection , trade law , building regulations and environmental law .

In emergency law, a strict distinction is made between police and non-police security. The former is basically the responsibility of the general and special regulatory authorities , the names of which depend on the country. The law enforcement police, whose actions are designed for particular speed, are only responsible for police security in exceptional cases. Non-police security is carried out by general and special administrative authorities and organizations appointed by them. It is regulated , among other things, in the fire brigade laws , disaster control laws and the rescue service laws of the federal states.

The prevention-oriented police and regulatory law is opposed to the investigation of criminal offenses and administrative offenses as a repressive task. This is done by the police under the direction of the public prosecutor's office and is based on criminal procedure and regulatory offense law .

History of origin

Police regulations of Emperor Charles V 1530 (title)

From police regulations to police law

The term police is rooted in the ancient Greek word politeia (πολιτεία), which described the entire state administration. The term Polizey found its way into the German official language in the 15th century, where it was used in several police regulations . There he described the state of good order in the community. In order to maintain this state of affairs, the police regulations gave the sovereigns extensive regulatory powers, for example for market surveillance, criminal prosecution and for the enforcement of professional standards and religious commandments. The police's area of ​​responsibility at that time was therefore much broader than it is today.

During the period of absolutism , the police's area of ​​responsibility was expanded to include state administration. Especially in matters relating to the economy, it was expanded to include creative tasks. The expansion of police powers was based on extremely vague legal bases, which is why its scope and limits were difficult to determine. Sovereigns regularly inferred their powers from the purpose of their actions. The extraordinary breadth of the police's areas of responsibility formed the basis of the police state .

Johann Stephan Pütter

The great power of the police force, which cannot be determined in terms of content, met with increasing rejection among the population. As a result, a narrower understanding of police duties developed, which was shaped by an emerging police science . This led to a limitation of the police's competence to matters of internal administration, in particular to security and services of general interest .

Carl Gottlieb Svarez

In the course of the investigation , at the suggestion of numerous lawyers, such as Johann Stephan Pütter and Carl Gottlieb Svarez , the responsibility of the police was further narrowed down to hazard prevention. For example, the Prussian General Land Law (ALR) of 1794 regards security as a central task of the police. Nevertheless, even during the Enlightenment, the German states enacted numerous legal provisions that gave the police extensive administrative responsibility. Essential elements of the police state remained, especially during the Restoration in the early 19th century.

The rule of law restricts police activity to a greater extent following the German Revolution of 1848–1849 : The police’s tasks were limited to the defense of dangers. Legislators also increasingly refrained from granting the police the right to use whatever means they considered necessary to carry out their duties. This subjective view was replaced by an objective one: the police were only allowed to take those means that were actually necessary to achieve the desired goal.

Police law from the German Empire to National Socialism

Kreuzberg monument

The increasing legal obligation of the police continued after the establishment of the German Empire . It was particularly evident in the Kreuzberg ruling of the Prussian Higher Administrative Court on June 14, 1882. In this legal dispute, the court found that the police were not authorized to issue an ordinance to protect the cityscape, as this did not serve to avert danger and thus not the area of ​​responsibility the police fell. Through this and other judgments, the jurisprudence created important foundations for a rule of law police system. This includes in particular the principle of proportionality , which is still an essential legal requirement for state action.

The police law of the empire was essentially regulated by the federal states. As a result, two different control techniques emerged: In Northern Germany, following the example of Paragraph 10 II 17 ALR, general clauses , extremely broad legal norms, formed an essential basis for police action. In southern Germany, however, the police's powers to intervene largely resulted from special regulations. Both control technologies were combined in the Weimar Republic . Incidentally, the police law initially hardly differed from that of the empire. In 1931, the Prussian legislature created a new legal basis for police law with the Police Administration Act, which took up and codified the further development of police law through case law.

During the time of National Socialism there was a significant expansion of police competence and the abandonment of the rule of law. The police were given the task of promoting and maintaining the National Socialist ideology. To this end, it was centralized and given numerous broad special powers that went well beyond the realm of security. For example, the Secret State Police was formed, which was given comprehensive rights to intervene to combat political opponents of the regime and was beyond judicial control.

After the Second World War: Development in West Germany

Decommissioning of the police among the Western Allies and separation of regulatory law

After the end of the Second World War , the Western occupying powers tried to prevent the police from being used again as an instrument of power. For this purpose, the intelligence services and the police were kept strictly separate . Furthermore, the police were largely decentralized, in that they were largely subordinate to the states and municipalities. Finally, an extensive de-policing of the public administration was attempted: the tasks of the uniformed law enforcement police should be limited to on-site security in urgent cases . As a rule, security should be carried out by administrative authorities whose procedures are more strictly formalized than the law enforcement police and whose powers of intervention are less restrictive.

In some federal states, an organizational separation between the uniformed law enforcement police and the police administration was introduced in order to safeguard the de-police. This particularly affected the federal states under British and American administration. The separation of the prison police and police administration is particularly clear in North Rhine-Westphalia : There the police are organizationally separated from the general and special regulatory authorities and have an independent legal basis in the form of the Police Act (PolG NRW). According to § 1 Abs. 1 S. 3 PolG NRW, the police are only responsible for averting danger if the regulatory authority is unable to intervene or not in time.

1st Generation Police Laws (1950s / 1960s)

After the establishment of the Federal Republic of Germany, the federal states began to enact police laws. These were largely based on the Prussian Police Administration Act of 1931 and had a similar structure to one another. The focus of the state laws was a general clause, which authorized the police to take the necessary measures to avert danger. The general clause for frequently recurring and particularly aggressive measures was supplemented by standard measures . The existence of a concrete danger to public safety or order was considered a basic requirement for police action.

2nd Generation Police Laws (1970s)

From the 1970s onwards, under the influence of student movements , the actions of the Red Army faction and the rise of organized crime , legislators began to expand the powers of the police. A key motivation was to support law enforcement . For this purpose, the state legislators created new standard measures, which increasingly expanded the scope of activity of the police authorities to include crime prevention. Their area of ​​application was regularly upstream of the defense against specific dangers. The newly created authorization bases therefore increasingly dispensed with the precondition of danger . Instead, they tied to the existence of situations in which there was an increased probability of the commission of crimes. This factual expansion had the consequence that the requirements under which people could be asserted by means of hazard prevention measures were reduced.

When revising their police laws, the state legislators based themselves on the model draft of a uniform police law that the Conference of Interior Ministers drew up between 1972 and 1977. With this draft, the ministers aimed to standardize police laws across countries.

3rd Generation Police Laws (1980s)

Judges' building of the Federal Constitutional Court

In the 1980s, legislators tried to create a legal basis for the acquisition and processing of personal data , for example through observation and computer searches . In doing so, they wanted to enable the security authorities to use the technical progress in data processing technology to carry out their tasks; Organized crime in particular should be combated through prevention. For this purpose, the Conference of Interior Ministers made an amendment to the draft model in order to create the relevant informational powers to intervene. As a result, numerous regulations were created, some of which also allowed clandestine interference with fundamental rights , which was an innovation in this form. The federal states then supplemented their police laws with corresponding regulations.

The changes to the police and regulatory acts were largely initiated and shaped by the case law of the Federal Constitutional Court, which provided legislators with guidelines, particularly for interfering with the right to informational self-determination . A fundamental decision in this context is the census ruling of 1983, in which the Federal Constitutional Court recognized the right of individuals to decide on disclosure and use of their personal data. For the legal basis for the collection and processing of such data, the court demanded that this type and extent of the interference be precisely described and that the impairments of fundamental rights are not disproportionate to the purpose pursued.

After the Second World War: Development in East Germany

In East Germany, the Soviet occupying power set up the German People's Police, a centrally organized police force that was supposed to secure the communist dictatorship. Immediately after the end of the war, the police were subordinate to the federal states. After the founding of the GDR , it was subordinated to the Ministry of the Interior and was thus managed by the central government. In 1950 the State Security Service was established, which served as a secret police for political surveillance and repression. In 1952 the Barracked People's Police was founded, the forerunner of the National People's Army .

In 1968 the law on the tasks and powers of the German People's Police was enacted, which formed the basis of police action in the GDR in the following years. Its structure showed parallels to the West German police laws, but the intervention thresholds were lower, especially for the use of firearms .

On October 1, 1990, a new police law came into force in the GDR, which was based on the West German draft and regulated the law of the prison police. This was intended to give the East German police a legal basis that could remain in place for the time being after reunification , so that the unification does not result in an unlawful area in the area of ​​security.

Since the reunification

After the dissolution of the GDR, the police in East Germany were restructured along the lines of West Germany. The new federal states created their own police laws between 1992 and 1996, which replaced the police law of the GDR from 1990. In addition, they developed regulatory laws to implement the western depopulation of the administration.

The further development of police law has been significantly influenced by the fight against cross-border organized crime since reunification . In order to increase their effectiveness, the legislators created the basis for the expansion of national and international cooperation in defense against danger. The federal government has also increasingly expanded the powers of its emergency response authorities.

Federal Border Guard Act of 1994

In 1994 a fundamental reform of police law began at federal level. By revising the Federal Border Guard Act , today's Federal Police Act , the legal basis of the Federal Border Guard was brought into line with the more recent developments in the Landing Police Act. This particularly concerned the right to data collection and processing. In order to implement the court's requirement for sufficiently precise authorization bases for these measures, the legislature created appropriate legal norms. He also specified the scope of duties of border protection, especially with regard to criminal prosecution, which has so far been largely based on the general section 163 of the Code of Criminal Procedure (StPO).

BKA Act of 1997

In 1997 there was an amendment to the BKA Act , which was also a response by the federal government to the census ruling of the Federal Constitutional Court. The legislature added extensive regulations for data collection and processing by the Federal Criminal Police Office in order to implement the requirements of the judgment. In addition, he expanded the competencies of the Federal Criminal Police Office, which should promote cross-border cooperation between police authorities for the purpose of effectively fighting crime.

Police law in view of international terrorism

As a result of the terrorist attacks of September 11, 2001 , averting the dangers of international terrorism was added as a factor that shaped the further development of German security law to a large extent and led to numerous legislative changes.

The state legislators supplemented the police laws with numerous measures, which in particular served the preventive monitoring of sources of danger and the acquisition and exchange of information. Numerous federal laws were changed by the Anti-Terrorism Act of 2002, with which the federal government expanded the powers of its secret services in particular . In the following years, the federal government endeavored to coordinate the state police more closely in the fight against terrorism and crime. Particularly controversial was the Federal Aviation Security Act enacted in 2005 , Section 14 of which was later declared unconstitutional by the Federal Constitutional Court.

In 2008 the federal government added several police authority norms to the BKA Act, which authorized the BKA to carry out online searches , screen searches and technical monitoring of living space . Due to its encroachment on fundamental rights, the BKA Act was attacked by several constitutional complaints , which the Federal Constitutional Court upheld in 2016. This ruling specified the constitutional requirements for judicial reservations and parliamentary control over secret data collection. As a result, not only did the BKA law have to be revised, some state police laws also needed to be adapted to the requirements of the court.

Reforms were also required to implement the European JHA Directive for data protection in the police and judiciary (Directive (EU) 2016/680). Various federal states have therefore been revising their police laws since 2017.

Recent reforms of the state police laws

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Protest against and innovations in the police law in Saxony
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Demonstration in Düsseldorf against the planned police law, 2018

Since 2017, attempts have been made in Bavaria (Interior Minister Joachim Herrmann , CSU) and Baden-Württemberg (Interior Minister Thomas Strobl , CDU) to allow the state police to use " hand grenades " or others "in special individual cases, especially in connection with terrorist attacks" Explosives "to facilitate. There was criticism of the project from the Greens co-ruling in Baden-Württemberg, civil society initiatives, network activists and peace initiatives; the police union (GDP) declines equipping the police from using hand grenades.

In Bavaria , a revised version of the Police Task Act came into force on May 25, 2018 . As a result, the police's powers to intervene have been expanded to the extent that they can take coercive measures against potentially dangerous people in the run-up to the emergence of dangers. In other federal states, such as North Rhine-Westphalia and Lower Saxony, similar reforms are in the legislative process.

The reforms of the police laws, in particular the introduction of the concept of impending danger, aroused widespread public protest against both the Bavarian Police Task Act and the North Rhine-Westphalian Police Act . Constitutional lawyers and data protection activists also expressed considerable concerns about the planned changes. For example, the judge Markusöffelmann came to the judgment that the North Rhine-Westphalian draft was much more moderate than the Bavarian amendments, but that it still contained additions relating to the advance of danger that were constitutionally questionable. With the exception of the police associations, the draft met with broad criticism at the hearing in the state parliament of North Rhine-Westphalia . The FDP politicians Gerhart Baum and Burkhard Hirsch announced that they would be suing the Federal Constitutional Court against the police law.

The Stuttgart branch of the Chaos Computer Club received access to a draft of a more stringent police law from the Ministry of the Interior in Baden-Württemberg at the end of 2018 . The law was tightened in 2017. Resistance is forming under the abbreviation "NoPolGBW", initiated by the Pirate Party Germany .

Influences under European law and international cooperation

In order to combat threats more effectively, in particular organized crime and terrorism, international cooperation between police authorities has grown in recent years, particularly at European level. This development initially came largely from the EU member states, which concluded corresponding agreements with each other. This resulted in several cross-border security projects. The Schengen Convention , for example, laid the foundations for increased cross-border cooperation between the police authorities of the contracting states . With the help of the Schengen Information System , the cross-national search should be simplified.

Through the Maastricht Treaty of 1993, the member states of the Union transferred competences for domestic and judicial policy. In the Treaty of Amsterdam of 1999, the member states set the goal of creating a European area of ​​freedom, security and justice. This goal should primarily be achieved through increased cooperation between the Member States, which is promoted by the Union. As a result, several European agencies such as Europol , Eurojust and Frontex emerged . The Lisbon Treaty of 2009 took up this goal and reformed police cooperation at Union level. He gave the Union powers that go beyond the mere coordination of the activities of the Member States.

The European Convention on Human Rights and its interpretation by the European Court of Human Rights represent a further legal framework for the action of German security authorities .

Legislative competence

In principle, the legislative competence according to Art. 30 , Art. 70 of the Basic Law (GG) lies with the federal states. The federal government is only authorized to regulate in the areas for which the Basic Law assigns it legislative competence. Such does not exist for general police and regulatory law. This area is therefore within the competence of the federal states that have created corresponding regulations with their general police and regulatory laws.

The federal government has the legislative competence for individual areas of hazard prevention law: According to Article 73, Paragraph 1, No. 5 of the Basic Law, it is only allowed to make regulations on border protection and customs law . This title is the basis of the Federal Police Act. Article 73, Paragraph 1, No. 10 of the Basic Law also assigns the Federal Government the power to regulate cooperation between the Federal Government and the Land in the areas of the criminal police and the protection of the constitution. The BKA Act is based on this title. The federal government is also responsible for combating international terrorism in accordance with Article 73, Paragraph 1, No. 9a of the Basic Law; according to Art. 74 GG also for the regulation of association , foreigners and trade law. The federal government had the legislative competence for the right of assembly until the federal reform of 2006; since then, only the federal states have been responsible. According to Art. 125a GG, the Federal Assembly Act (VersG) continues to apply insofar as the states do not make use of their legislative competence. Further federal competencies are rooted in annex competencies . For example, on the basis of Article 73, Paragraph 1, No. 6 of the Basic Law, the federal government can issue rules on aviation security .

Subject of police and regulatory law

Police security

In the police and regulatory laws of almost all German states, the first paragraph defines that it is the task of the police and regulatory authorities to ward off dangers to police assets. This is a preventive task: Police and regulatory authorities are supposed to prevent certain goods from being damaged. The prevention of danger is part of the special administrative law in terms of the legal system. Therefore, a dispute over a counting this measure represents a public dispute which, under § 40 para. 1 sentence 1 of the Code of Administrative Procedure (Code of Administrative Procedure) of the administrative courts is opened.

The subject matter of police and regulatory law does not include repressive tasks that the police perform in addition to their preventive tasks. This includes the prosecution of criminal offenses and administrative offenses regulated by federal law. Legal disputes about repressive actions by the police are assigned to the ordinary courts . If police action contains both preventive and repressive elements, their legal assessment is based on their focus.

The limit to non-police security

The non-police emergency response, which is carried out by the fire brigade and aid organizations , is to be separated from the police emergency response . These include fire protection and disaster control .

Protection of public safety and order

The federal states unanimously describe public safety as an asset . Apart from in Bremen and Schleswig-Holstein , the police are also responsible for protecting public order .

public safety

Public safety includes the integrity of the legal system, i.e. the entire written law. This includes in particular administrative and criminal prohibitions.

Public security also protects individual rights. These are rights and legal positions that public law assigns to the individual. This applies to life , physical integrity and property , for example . On the other hand, no part of public security are exclusively private rights, such as claims the protection of which is assigned to civil justice . Often a violation of an individual legal good also means a violation of the legal system, so that for this reason alone there is a danger. Individual legal assets have independent significance as protected assets if their threatened violation does not violate the law, for example in the case of natural events and self-harm . In the case of the latter, however, it should be noted that the citizen can freely decide which dangers he accepts by virtue of his general freedom of action . In principle, there is no risk of self-harm. The situation is different if it is not based on free will formation, for example because the endangered person is in a predicament or does not know about the dangerousness of his trade. If, in such a case, there is a state duty to protect the endangered legal interest, as applies to the legal interests of life and limb, for example, according to Article 2, Paragraph 2, then the threat of violation is a threat. The distinction between danger and self-responsible self-harm, for example in the event of suicide attempts, is of practical importance .

Finally, public security also includes the existence of the state, its institutions and events. If such a legal asset is endangered by violating a legal norm, the legal system is regularly violated at the same time. This protected asset has independent significance in cases in which the risk does not violate the law, for example when the traffic police warn of speed measurements .

Public order

Public order comprises the unwritten rules for the conduct of the individual in public, observance of which is generally regarded as an indispensable prerequisite for a prosperous coexistence. As violations of public order, the Court reviewed, for example, operating a brothel to a girls' school (1954), a condom vending machine (1959), the organizing of a dwarf wide throw (1992), the flying of the Reich War Flag (1994) and offering a Laserdrom - War Game ( 2001)

The extraordinary breadth of the concept of public order in combination with its vague assessment criteria has provoked criticism of this protected asset in jurisprudence: Many complain that the concept of public order is too vague to satisfy the rule of law. The federal states of Bremen and Schleswig-Holstein have therefore removed him from their police laws. Voices in favor of the preservation of this protected asset argue that it allows intervention in the event of unforeseen developments and thereby promotes the flexibility of police law, which is necessary for the effective defense against dangers.

The practical significance of the subject of public order is meanwhile low, since many areas of life are regulated by legal norms, the violation of which already constitutes a danger to public safety. For example, Section 118 of the Administrative Offenses Act (OWiG) prohibits grossly improper acts that are likely to annoy or endanger the general public and impair public order.

Special and general police and regulatory law

The general police and regulatory law form the basis of the law to avert danger and regulate the defense of all types of dangers by the law enforcement officers and regulatory authorities. For numerous matters, however, the danger prevention is regulated separately in more specific laws, and this trend is increasing. These matters form the special police and regulatory law, which, as a more specific law, takes precedence over general police and regulatory law. The competent authorities are determined in the respective legal sources. The special police and regulatory law include building regulations , which deal with the defense against dangers from the construction, existence and use of structures . This is mainly regulated in the state building regulations. Further examples are the right of assembly, trade law and environmental law.

Legal distribution of tasks

The police and regulatory act basically assign police security to the administrative authorities; only in exceptional cases does the law enforcement police carry out security measures. For example, Section 1 (2) sentence 1 of the Lower Saxony Law on Public Safety and Order (SOG) stipulates that the police only perform danger prevention tasks if the administrative authorities do not appear to be able to act or not in good time. The prison police thus only have subsidiary emergency jurisdiction. This is a consequence of the de-policing of the public administration after the Second World War.

Crime prevention

Another task of the police is crime prevention. For example, Section 1, Paragraph 4 of the Hessian Law on Public Safety and Order (HSOG) stipulates that the police must prevent expected criminal offenses and make provisions for the prosecution of future criminal offenses.

Independent task or part of police security?

It is controversial in jurisprudence whether crime prevention is an independent task of the police or a component of police security. Many police laws subordinate them to security based on the model of the draft. On the other hand, it is argued that crime prevention usually precedes conventional danger prevention because it usually takes place at a time when there is not yet a specific risk of a criminal offense; Authorization bases that serve crime prevention therefore often dispense with the constituent element of danger and instead relate to situations in which there is an increased probability of danger. The conventional task area of ​​hazard prevention is thus expanded. Therefore, numerous voices from the teaching view crime prevention as an independent task of the police.

Crime prevention

The prevention of criminal offenses includes measures that are intended to prevent criminal offenses from being committed later. Since it is not a matter of criminal procedural measures, their order does not require initial suspicion . The specific risk of committing a criminal offense is not usually necessary either, since criminal offenses should usually be prevented before such a danger arises. For example, an identity verification can be ordered as a typical means of crime prevention in accordance with Section 12 (1) No. 2 PolG NRW if the person concerned is in a location where facts justify the assumption that criminal offenses are being agreed, prepared or committed there . Another common prevention tool is the video surveillance of areas of crime.

Provision for law enforcement as a borderline case

Prosecution precautions are intended to facilitate the subsequent prosecution of criminal offenses. This is done in particular by collecting and using personal data, for example by taking photos and fingerprints. With this aim in mind, the criminal prosecution provision shows strong links to repression, which is not the subject of police and regulatory law. However, it also has a crime preventive function in that it discourages the commission of crimes. In contrast to repressive measures, criminal prosecution precautions are also detached from specific investigative proceedings. Therefore, the systematic positioning and legislative competencies of this task have not yet been finally clarified.

The Federal Constitutional Court assigns the collection of data to the repressive area of ​​responsibility of the police if the data obtained is primarily to be used in later criminal proceedings. Then it falls within the competing legislative competence of the Federation under Article 74 (1) No. 1 of the Basic Law. This leaves room for state law only to the extent that the federal government has not conclusively regulated the matter. So far, such regulations have only existed selectively, for example in the area of telecommunications surveillance .

Enforcement assistance

After all, the police provide enforcement assistance to other authorities, i.e. support them in the implementation of sovereign measures. As a result of the separation of the police from other security authorities, many authorities do not have their own law enforcement agencies. Therefore, they have to resort to police forces to enforce measures.

The main use case of police enforcement assistance is the use of direct coercion . Some police laws, such as Art. 67 PAG, limit the scope of enforcement assistance to this case in order to relieve the police.

Police and regulatory measures

Police and regulatory administration as intervention management

Danger prevention often takes place by encroaching on fundamental rights, which is why it is part of the area of intervention management . Therefore, fundamental rights in police and regulatory law represent a significant restriction on state action.

Because of the legal reservation , encroachments on fundamental rights are only possible on a legal basis. Statutory assignments of tasks are not sufficient for this because of the rule of law; rather, a separate statutory arrangement of the authority to intervene is necessary through a power standard. This separation of task and authority norms is particularly pronounced in police and regulatory law. Historically, it comes from the southern German security law.

Requirements for the basis for intervention

In order for an interference to be based on a power standard, it must be substantively constitutional. This assumes in particular that it complies with the requirement of certainty and the principle of proportionality. The requirements that both principles place on the basis of intervention depend on the intensity of the intervention to which the regulation authorizes: the more serious an intervention weighs, the more clearly the authority norm must be formulated, since essential decisions must be made by parliament according to the materiality theory . Serious legal interference must also be matched by a significant interest that justifies the interference. Thus, for example searches of flats because of associated therewith serious interference with the inviolability of the home ( Art. 13 GG) only under relatively strict conditions. According to the prevailing opinion, rescue torture , which is considered a violation of human dignity ( Art. 1 GG), can not be justified .

The influence of basic rights on police and regulatory law is shown, among other things, in the fact that the offense of numerous power norms presupposes a concrete risk for reasons of proportionality. Such a risk exists if, if current events continue unhindered, damage to a protected item of the police force is likely in the foreseeable future. In the case of particularly intrusive measures, such as the search of an apartment , the danger must be regularly qualified due to the principle of proportionality, i.e. threaten particularly important legal interests or be particularly likely. For measures that do not aim to avert danger situations that have already been concretized, the existence of an abstract danger is required; for example when issuing hazard prevention ordinances . There is an abstract danger when, according to general life experience, a situation can turn into a concrete danger. This is answered in the affirmative, for example, for carrying glass bottles to major events, as general experience has shown that this means that broken glass on the floor endangers others.

The presence of a danger is assessed from the perspective of a carefully acting officer at the time of the decision to take a danger prevention measure. Therefore, a danger in terms of police and regulatory law can also exist if it subsequently turns out that there was no danger. If the acting officer is allowed to assume a danger on the basis of indications, one speaks of an apparent danger which is equal to the concrete danger. The situation is different if the officer in question only assumes a danger due to insufficient clarification or assessment of the facts. Then there is a mere putative risk (also: sham risk), which does not authorize measures to prevent danger.

The element of danger in the case of informational intervention powers is largely dispensed with, since these authorities are supposed to authorize action in advance of a danger. Therefore, these authorization bases are regularly linked to descriptions of situations or indications of dangers. Since these features are comparatively fuzzy, the Federal Constitutional Court particularly demands that such authorization bases are clearly and precisely formulated.

Types of intervention bases

Special legal authorizations

The special police and regulatory law contains numerous special laws that contain independent power standards for hazard prevention authorities. Examples of such bases for intervention are the commercial prohibition according to Section 35 of the Trade Regulations , the ban on assemblies according to Section 5 , Section 15 VersG and the general clauses of the state building regulations under building regulations.

Standard measures

The general police and regulatory acts contain numerous standard measures (also: individual measures). These standards fulfill two functions: On the one hand, they are intended to offer coordinated regulations for particularly frequent hazard prevention measures. On the other hand, they should satisfy the principles of certainty and proportionality. Standard measures regulate the content and scope of certain encroachments on fundamental rights; often they also contain procedural guidelines.

A standard measure contained in all state police laws is the search. Here an authority searches specifically for a thing or a person. The state police laws differentiate between searches of people, property and homes. This is based on the different reference to fundamental rights: The search of a person encroaches on their freedom of action and personal rights . The search of an object affects the freedom of property . The search of homes finally encroaches on the inviolability of the home .

During the seizure , a public authority establishes custody of an item. This creates an obligation under public law in the form of a custody relationship between the authority and the owner. Some police laws, such as those in Saxony and Baden-Württemberg, differentiate between seizure and confiscation . You understand the seizure as a measure to protect the legitimate owner of the thing, while the seizure serves to protect third parties.

By a sending off an authority is on a person to leave a particular place and to enter it for a certain time not return. Its purpose is a short-term ban, which usually only takes effect for a few hours and is only intended to relate to a narrowly limited area. A long-term and spatially far-reaching effect can be brought about by a residence ban. Closely with dismissal and for lifting of the regulated in many countries apartment referral related. Here, a person is told to leave an apartment and not to re-enter for a certain period of time. This is to prevent domestic violence .

All state police laws continue to contain a standard measure for detention . This empowers to prevent a person from leaving a tightly unlimited space.

The police laws also contain numerous authorization bases that allow the collection and use of personal data. The data collection takes place through open and covert measures. An open data collection exists if the authority discloses the collection of data to the person concerned, for example during the interview , the summons , the presentation and the identification. In the case of covert measures, this is missing, so the person concerned is not informed of the measure. Examples of this are observation and the use of confidants . A particularly intrusive measure is the raster search, which is subject to strict justification requirements. Here, databases are examined for the presence of certain characteristics in order to identify a person.

General clause

The general police and regulatory acts finally contain a general clause that is intended to give the emergency services authorities the opportunity to respond effectively to as many - especially atypical - case constellations as possible. For example, Section 8 (1) PolG NRW stipulates that the police may take the necessary measures to ward off a specific danger to public safety or order that exists in individual cases.

In practice, the general clause serves as a basis for addressing dangerous people , reporting requirements , closing illegal betting offices , creating artificial traffic jams and towing vehicles parked illegally . The general clause finds its limit in serious encroachments on fundamental rights, since, according to the materiality theory, a specific norm is required for this. This applies to the surveillance of a public place with the help of cameras. It is controversial whether the instruction of homeless people in living space can be based on the general clause, or whether a more specific authorization basis is required because of the encroachment on property rights in particular from Article 14 of the Basic Law.

Relationship between the bases of intervention

The relationship between the bases of intervention is shaped by the principle of lex specialis derogat legi generali . According to this, the more specific regulation takes precedence over the more general one. Recourse to general police and regulatory law is therefore only possible if no special statutory authorization bases are relevant. The Assembly Act, for example, finally regulates interventions in ongoing assemblies in order to avert assembly-specific dangers (so-called police resistance to freedom of assembly ).

Within the general hazard prevention laws, the more specific standard measures have priority over the general clauses. If the scope of a standard measure is open, recourse to a general clause is excluded. This applies in particular if the requirements of the standard measure are not met, as otherwise the regulatory system of the laws would be broken. If, for example, the requirements of the standard search measure are not met, a search cannot be based on the general clause.

Police obligation

If the factual prerequisites of an authorization norm are met, the competent hazard prevention authority may take measures. Here the question arises, against whom it can direct this measure.

Principle of accountability

Because of the influence of fundamental rights, measures to prevent danger may only be taken against those who are responsible for the danger (so-called interferers ). A disruptor is anyone who violates everyone's duty not to endanger the interests of the police. The general police and law enforcement act differentiate between the offender and the offender.

The principle of accountability is tailored to traditional security measures. It is not suitable for the selection of addressees in the run-up to the danger, as no person can be identified as a disruptor due to the lack of danger. How the target group can be restricted in the case of preliminary measures has not yet been conclusively clarified.

Action disruptor

Action disorder (also: behavior disorder) is, according to the prevailing theory of immediate causation, whoever causes a danger directly through their own actions. This applies, for example, to a person who throws objects onto a roadway and thereby endangers motorists. For the disruptive property, it is neither fault nor the ability to understand. If a minor or carer causes a danger, his legal representative is also liable in addition to this .

It is controversial how it is to be judged when someone, through their own actions, induces others to cause a danger. Such an indirect disruption through one's own actions occurs, for example, if a shopkeeper places an attraction in his shop window that induces passers-by to stop in front of the window and thereby obstruct traffic. The pedestrians are disturbing actions, so that the security authorities can take action against them. However, it would be more effective to use the shopkeeper to oblige him to remove the attraction from the shop window. According to case law and the vast majority of literature, this is possible if the shop owner is the initiator. The initiator is someone who indirectly causes a hazard and at least approves of the fact that others cause a direct hazard through their actions. In some cases, however, the figure of the initiator of the purpose is rejected because it leads to random results in that it is based on the approving acceptance of the person concerned. In addition, as legal training to the detriment of the citizen, it is not compatible with the requirement of certainty and the legal reservation of fundamental rights.

Condition disorder

A disorder is someone who exercises actual or legal power over something that poses a risk. This applies, for example, to the owner of a dog who threatens to injure third parties. The owner of a property that is built on with a hall in danger of collapsing or is contaminated with oil is also considered to be a condition disruptor.

Contaminated sites pose practical problems in determining state responsibility

Basically, the responsibility for the state is relieved with the loss of control over the thing, since this ends the possibility of averting its danger. However, the state police laws of most countries stipulate that state responsibility does not end with dereliction . This is to prevent a person from transferring their responsibility to the public sector. The sale of a thing to a third party can also leave one's own responsibility for the condition unaffected, if it is merely an attempt to circumvent police responsibility. This is the case, for example, if the thing is transferred to a society with no assets. In accordance with Section 4 (6) of the Federal Soil Protection Act , responsibility for the condition remains in place when a property is sold if the seller knew or should have known the danger.

The state responsibility finds its limit in the principle of proportionality, since it encroaches on the property right protected by fundamental rights (Art. 14 GG). If a hazard prevention measure is therefore associated with costs that significantly exceed the value of the thing, the owner can be excluded from liability. This is of practical importance, especially in the case of contaminated sites .

Use of non-responsible persons

Police emergency

If a person is not responsible for a hazard, they can, under special circumstances, be called upon as a non-disruptor. This possibility is justified by the aim of averting danger as effectively as possible. In order for a person to be used as a non-disruptor, a police emergency must exist. The relevant requirements of the state police laws are largely the same across the country: According to Section 6 (1) PolG NRW, there must be a significant current risk. Furthermore, it must not be possible to take measures against the action or condition disruptor or not in good time. Furthermore, the police must not be able to avert the danger themselves or through agents, or not in good time. Ultimately, it must be possible to claim against the person concerned without significant personal risk and without breaching higher-value obligations.

Succession

If the addressee of a security measure dies or a third party gains control of a dangerous thing, the question arises under which conditions his legal successor may be sued by the police. A legal succession can take the form of an individual or universal succession . The former applies, for example, to the transfer of ownership of a thing, the latter to inheritance .

Police and regulatory law hardly contain any legal provisions on legal succession. Nevertheless, the prevailing view in jurisprudence assumes that this is in principle possible for the purpose of effective hazard protection. However, in which cases this is the case is extremely controversial.

There is agreement to the extent that a succession to a duty is only possible if its content can be transferred to a legal successor. This applies to the responsibility for states, since then it does not depend on the person of the addressee to avert danger. For example, for the sensible implementation of a hazard prevention measure, it does not matter whether a thing that poses a risk is sold to a third party. If an administrative act was issued against the seller , which prescribed a hazard prevention measure , according to the prevailing opinion, due to its factual nature , this also acts against the purchaser. If no administrative act was issued, the purchaser is independently liable as a disruptor, since he gains control of the thing through the acquisition. A separate successor to the police duty of the predecessor is therefore not important. The liability of the legal successor is more problematic if the risk results from the behavior of the legal predecessor. According to case law, the legal successor can only be liable if the obligation to conduct is not of a highly personal nature and has been substantiated by an administrative act vis-à-vis the legal successor.

Since this is a burden on the legal successor, the succession to the police obligation must continue to be ordered by law. In civil law, this is done in the case of universal succession through § 1922 , § 1967 of the Civil Code (BGB). There is no corresponding regulation in police and regulatory law. Therefore, the prevailing view in jurisprudence applies these norms analogously . In the case of individual legal succession, a distinction must be made between the following: Moving up to a state responsibility results from the fact that the legal successor gains control over the thing that has triggered the responsibility. A separate successor fact is therefore not required. In the case of responsibility for action, a succession of individual rights comes into consideration only where this is prescribed by standards. This applies, for example, to the assumption of debt according to § 414 , § 415 BGB.

Dangerous

The groups of people who pose a risk and relevant persons from the field of politically motivated crime are not legally defined . These terms refer to people for whom there are indications that they will cause considerable danger in the future, i.e. they will be disruptive. Taken in and of itself, this does not constitute a concrete risk, which is why the same measures may not be taken against a person causing danger as against a disruptor. The classification of a person as a hazard can, however, be an indication that speaks for the assumption of a specific danger.

Consequences of the authorization

If the offense of an authorization basis is fulfilled, the competent authority may take the measures to which the standard authorizes. Some rules dictate behavior; then it is a bound decision of the authority. Most police and regulatory powers, however, give the authorities some discretion in this regard . This relates to the taking of measures (resolution fairs), the selection of a measure (action fairs) as well as the selection of a target group (interferer selection fairs). The actions of the police and regulatory authorities are thus largely shaped by the principle of opportunity .

At the level of the power of resolution, from the point of view of the authority, the question arises whether intervention is necessary. In addition, the exercise of discretion is primarily characterized by the question of how an authority can most effectively avert danger.

If an agency decides to take action it must lawfully exercise its discretion. In particular, this requires that it adheres to the principle of proportionality . Legal doctrine derives this from the rule of law ( Article 20, Paragraph 3 of the Basic Law) and from basic rights, although it is expressly standardized in many police laws. The principle of proportionality obliges to compare the impairment of the addressee of a measure with the interests that this measure is supposed to protect. If these interests collide, they must be brought into an appropriate relationship to one another. This is achieved when the burden on the addressee represents the mildest of all options for action that are equally suitable for averting danger and does not unduly interfere with their rights. For example, towing an incorrectly parked vehicle is usually proportionate if it has been parked in such a way that it is likely to hinder other road users. According to the case law, this is often also proportionate if the driver leaves his contact details visible on the vehicle, since the establishment of contact by an official is time-consuming and associated with uncertain success.

Forms of action

The police and public order laws provide the authorities with different forms of action. The most common form of action is the administrative act. Usually this calls on its addressees to act, tolerate or omit, such as a dismissal. Authorizations are also issued by administrative act. Finally, the threat of official action, which is particularly important in enforcement law, can be made through an administrative act. In addition, authorities can use real acts to take action without any regulatory content. These include, for example, official warnings. Finally, they can make abstract general regulations by issuing hazard prevention ordinances.

enforcement

Towing an illegally parked vehicle as an example of a replacement

By means of enforcement, an authority enforces an administrative act that instructs its addressee to act, tolerate or fail to act, using coercion against the addressee. This can happen if the addressee does not fulfill his or her obligation.

Enforcement regulations can be found at the federal and state levels. The Federal Administrative Enforcement Act is the relevant source of law for the actions of federal authorities . At the state level, corresponding regulations can initially be found in general enforcement laws. In some cases, special provisions under hazard prevention law are added as leges speciales, which are intended to take account of the particular interests involved in preventing danger.

Coercive means

The police and administrative authorities are three types of restraints available: penalty , substitute performance and direct force .

In the case of substitute performance, the authority takes an action in place of the person liable. This means of coercion comes into consideration in the case of obligations that can be fulfilled by someone other than the addressee, which are therefore justifiable . This is the case, for example, with the arrangement to fell an unstable tree. On the other hand, measures aimed at toleration or omission are not justifiable, as these can only be fulfilled by the addressee in the interests of the authority.

The fine serves as a means of pressure: If the addressee does not comply with a sovereign order, he must pay a sum of money. The penalty payment is of practical importance, above all, when enforcing unjustifiable obligations.

In the case of direct coercion, the authority acts on a person or thing by means of physical force. In the latter case, the immediate compulsion overlaps with the substitute performance. The demarcation of the two measures is based on the type of implementation: If the official measure corresponds to the behavior that has been demanded by the obligated party, a substitute implementation is present. Otherwise it is an immediate coercion. It is therefore an immediate constraint, for example, if an authority tows a vehicle that has been parked incorrectly. The distinction between substitute performance and direct coercion is important for the law on costs: most enforcement laws only authorize the authorities to claim against the person liable for the costs of the measure in the case of substitute performance.

Many police laws contain detailed requirements for the application of direct coercion, which specify individual characteristics. In this context, they authorize the law enforcement police to use particularly intensive means to which other authorities are not entitled. This includes the final rescue shot . Since this represents an extremely serious encroachment on fundamental rights, it is only permissible under strict conditions as a last resort . Other specially regulated forms of direct coercion are the shackling of people and the use of special weapons and explosives . Many security agencies do not have the strength to use direct coercion themselves. For this purpose, they can request the law enforcement police to provide enforcement assistance.

Procedure

In principle, the enforcement is carried out by the authority that issued the administrative act to be enforced. There are two types of procedure available to her: The extended and the shortened procedure.

Enforcement of a basic ruling
Legal remedies against traffic signs have no suspensive effect

In the case of an extended procedure, enforcement is initially threatened against the addressee. This threat refers to the administrative act to be enforced (so-called basic ruling ) and names the means of coercion that the authority wants to use. If an obligation to act is to be enforced, it also determines a reasonable period.

Some state laws stipulate that the measure is determined following the threat to the addressee. The authority hereby declares that it will use the threatened means of coercion.

Finally, the administrative act to be carried out must be enforceable. This applies if legal remedies against them do not have suspensive effect . This effect exists in principle in accordance with Section 80 (1) VwGO, but does not apply if one of the cases mentioned in Section 80 (2) VwGO is present or the administrative act becomes final. Section 80 (2) sentence 1 no. 2 VwGO is of particular importance for police and regulatory law, according to which a legal remedy against an order or measure taken by a police officer has no suspensive effect. This provision applies analogously to traffic signs.

Administrative obligation without a prior basic order

With the exception of Baden-Württemberg , Hamburg and Saxony , the federal states have created a shortened enforcement procedure that dispenses with threats and detention. This immediate execution enables an enforcement measure to be taken without an administrative act being issued beforehand. It is intended for cases in which, for real reasons, no administrative procedure can be carried out, but rapid action is required. The shortened procedure is often used for substitute performance and direct coercion. Immediate enforcement occurs, for example, if an authority has a wrongly parked vehicle towed because it cannot reach the driver.

Some countries provide for the immediate execution procedure instead or in addition. In this case, an authority takes a measure instead of the addressee. The recourse of some countries to immediate execution is the result of a dispute over the legal classification of the execution of measures aimed at absenteeism - in some cases no administrative compulsion was seen here. For this reason, most of the countries that provide for both direct coercion and immediate execution demarcate the two procedures on the basis of the presence of the obligated party: if this is the case, it is immediate execution, otherwise it is immediate execution. In countries where immediate execution is not provided, immediate execution is the only form of shortened execution procedure.

Reimbursement

If costs are incurred in the course of a hazard prevention measure or in its execution, the public sector can demand these reimbursement on the basis of a statutory claim for reimbursement.

If the enforcement takes place through substitute performance or direct execution, the enforcing authority can claim against the citizen for the costs incurred if this measure is lawful. Although illegal administrative acts may also be carried out for the purpose of the greatest possible effectiveness of the danger prevention measure, the decision on costs should also take into account the extent to which the citizen was allowed to be selected as the addressee of a danger prevention measure. The provisions on the distribution of costs in the context of substitute performance are final regulations. Therefore, recourse to more general legal institutions, such as the management without a mandate , is excluded.

In the event of direct coercion, some countries stipulate that the person used must pay fees for the measure. The amount of the fees is based on the costs incurred by the individual. Since these cannot usually be precisely determined, flat-rate fees are regularly applied.

If the authority has an obligation to compensate, for example because it has made use of a non-disruptor to avert danger, it can take recourse against the operator or the disruptor. For example, § 42 OBG NRW stipulates that an authority that has to compensate a non-disruptor can demand that the person who disturbs the act or condition pays compensation for this obligation to pay compensation. If, for example, someone has to allow their forest to be searched and damaged because there is a suicidal person in it, the forest owner can demand financial compensation from the authorities. For this, the authority can take recourse against the suicide according to the regulations of the management without order.

If one of several responsible persons is claimed to be liable for the costs in full, this person can demand compensation from the others analogously to § 426 BGB.

It is controversial whether football clubs may be involved in the costs of police operations that are related to the games they host. For this it is stated that the bearing of the costs is fair in view of the income of the clubs. This is countered by the fact that averting danger must be financed by taxes , not by fees. In Bremen, Section 4 (4) of the Fees and Contributions Act is a corresponding regulation, the constitutionality of which is disputed.

Compensation

The danger prevention laws offer different claims for compensation, which give persons who suffer a disadvantage as a result of a danger prevention measure a right to financial compensation.

In some cases, these are linked to situations in which the claimant is claimed to be a non-disruptor. This liability is linked to the general idea of ​​self-sacrifice expressed in Sections 74 and 75 of the Prussian general law: If the citizen makes a special sacrifice for reasons of public interest, he should be appropriately compensated for it. Closely related to this is the claim for compensation provided in some police laws for those who, as an uninvolved third party, suffer damage on the occasion of the measure. In countries in which there is no such written basis for claims, this legal loophole is closed through legal training. If someone is claimed to be an apparent or suspected disruptor, they can, like a non-troublemaker, demand compensation if the appearance of the danger cannot be attributed to them.

Other bases for claims are linked to illegal action by the authorities: If an authority causes damage through illegal action, the injured party can demand compensation from the legal entity of the acting authority. This claim is independent of fault , so the claim exists regardless of whether the authority is guilty of intent or negligence . This is a strict liability .

The scope of the claims is limited to the payment of money, the hazard prevention laws do not provide for in rem restitution . According to most regulations, only financial losses that result directly from official actions are eligible for compensation. Any items that go beyond this and that would in principle be eligible for compensation under the damage law of the BGB, such as lost profit, can often only be replaced, if at all, if this is necessary in order to compensate for undue hardship.

The duty of compensation falls on the employer of the civil servant. The judicial enforcement of the compensation claims takes place in accordance with § 40 para. 2 sentence 1 VwGO through the ordinary legal process.

Organization and structure

Establishing the police force

Police officer in front of the Hamburg City Hall

Police authorities exist at both state and federal level. The organization of the state police varies due to different state laws. What they have in common is the division of the areas of activity into criminal police and protection police . The former clears up repressive crimes, the latter avoids dangers as a preventive measure. There are differences in the organization of the authorities: In Bavaria , for example, with the distinction between police and security authorities, there is a clear legal and organizational separation between the prison police and the police administration. Most federal states follow this type of organization, known as the separation system. The situation is different in Saxony , Saarland , Bremen and Baden-Württemberg . Here, the overall security is done by the police, who are internally divided into the prison police and police authorities . This is called the unit system.

The Federal Police has existed at the federal level since 2005 . This carries out danger prevention tasks assigned to the federal government. This applies, for example, to border protection. In contrast to the state police, the federal police are only responsible for selected areas of hazard prevention, since general hazard prevention falls within the jurisdiction of the federal states. In accordance with Section 1 (1) of the BKA Act, the Federal Criminal Police Office coordinates the cooperation between federal and state police authorities in investigating and preventing criminal offenses. In addition, there are other federal authorities with special areas of responsibility that also carry out security duties, such as the Federal Office for the Protection of the Constitution , the Electricity Police and the Federal Intelligence Service .


literature

Textbooks and manuals

  • Erhard Denninger, Frederik Rachor (Hrsg.): Handbuch des Polizeirechts: Danger defense - criminal prosecution - legal protection . 5th edition. CH Beck, Munich 2012, ISBN 978-3-406-63247-1 .
  • Volkmar Götz, Max-Emanuel Geis: General police and regulatory law . 16th edition. CH Beck, Munich 2017, ISBN 978-3-406-70407-9 .
  • Christoph Gusy: Police and regulatory law . 10th edition. Mohr Siebeck, Tübingen 2017, ISBN 978-3-16-155095-9 .
  • Franz-Ludwig Knemeyer: Police and regulatory law . 11th edition. CH Beck, Munich 2007, ISBN 978-3-406-56656-1 .
  • Michael Kniesel , Frank Braun, Christoph Keller: Special Police and Regulatory Law , Verlag W. Kohlhammer, Stuttgart 2018, ISBN 978-3-17-032607-1 .
  • Thorsten Kingreen, Ralf Poscher: Police and regulatory law: with the right to assemble . 10th edition. CH Beck, Munich 2018, ISBN 978-3-406-72956-0 .
  • Frederik Roggan, Martin Kutscha (ed.): Handbook on the law of internal security . 2nd Edition. BWV Berliner Wissenschafts-Verlag, Berlin 2006, ISBN 978-3-8305-1232-5 .
  • Wolf-Rüdiger Schenke: Police and regulatory law . 9th edition. CF Müller, Heidelberg 2016, ISBN 978-3-8114-7509-0 .
  • Markus Thiel: Police and regulatory law . 4th edition. Nomos, Baden-Baden 2019, ISBN 978-3-8487-4876-1 .

Comments

  • Federal law: Michael Drewes, Karl Magnus Malmberg, Marc Wagner, Bernd Walter: Federal Police Act (BPolG), compulsory application according to federal law, VwVG / UZwG , 6th edition, Stuttgart / Munich 2019, ISBN 978-3-415-06281-8 .
  • Baden-Württemberg:
    • Reiner Belz, Eike Mußmann, Henning Kahlert, Gerald Sander: Police Act for Baden-Württemberg , 8th edition, Stuttgart 2015, ISBN 978-3-415-05307-6 .
    • Ulrich Stephan, Johannes Deger, Günter Wörle, Heinz Wolf, founded by Hermann Reiff: Police law for Baden-Württemberg. Commentary , 7th edition, Stuttgart 2014, ISBN 978-3-415-05247-5 .
  • Bavaria: Wilhelm Schmidbauer, Udo Steiner: Bavarian Police Task Act , 3rd edition, Munich 2011, ISBN 978-3-406-61167-4 .
  • Berlin: Michael Knape, Ulrich Kiworr, Günter Berg, Karl-Ernst von Hein: General police and regulatory law for Berlin. Commentary for training and practice , 10th edition, Hilden 2009, ISBN 978-3-8011-0611-9 .
  • Bremen: Rolf Schmidt: Bremen Police Law. Study and practice commentary , 1st edition, Grasberg bei Bremen 2006, ISBN 978-3-86651-001-2 .
  • Hamburg: Guy Beaucamp, Ulrich Ettemeyer, Josef Konrad Rogosch, Jens Stammer: Hamburg Security and Regulatory Law - SOG / PolDVG. Commentary , 2nd edition, Stuttgart / Munich 2009, ISBN 978-3-415-04200-1 .
  • Lower Saxony: Norbert Ulrich, Bernhard Weiner, Karl-Heinz Brüggemann: Lower Saxony police law for study, examination and practice. Stuttgart / Munich 2012, ISBN 978-3-415-04900-0 .
  • North Rhine-Westphalia
    • Henning Tegtmeyer , Jürgen Vahle: Police Act North Rhine-Westphalia (PolG NRW). Commentary , 12th edition, Stuttgart / Munich 2018, ISBN 978-3-415-06206-1 .
    • Hans-Michael Wolffgang, Michael Hendricks, Matthias Merz: Police and regulatory law North Rhine-Westphalia. Study book with cases , 3rd edition, Munich 2011, ISBN 978-3-406-61578-8 .
  • Rhineland-Palatinate: Dietrich Rühle, Hans-Jürgen Suhr: Police and Regulatory Authorities Act Rhineland-Palatinate: Commentary for Study and Practice , 5th Edition, Baden-Baden 2013, ISBN 978-3-8329-7966-9 .
  • Saarland: Herbert Mandelartz, Helmut Sauer, Bernhard Strube: Saarland Police Act. Commentary for study and practice , Hilden 2002, ISBN 3-8011-0435-4 .
  • Saxony:
    • Online comment
    • Reiner Belz, Hartwig Elzermann: Police Act of the Free State of Saxony. Commentary for practice and training , 4th edition, Stuttgart 2009, ISBN 978-3-555-54040-5 .

Web links

Federal police law

Police law of the federal states

Individual evidence

  1. ^ Dieter Kugelmann: Police and regulatory law . 2nd Edition. Springer, Berlin 2012, ISBN 978-3-642-23374-6 , Chapter 2, Rn. 2. Byungwoog Park: Change from classic police law to the new security law . BWV Berliner Wissenschafts-Verlag, Berlin 2013, ISBN 978-3-8305-2884-5 , p. 175 .
  2. ↑ Hans Boldt, Michael Stolleis: History of the Police in Germany , Rn. 5. In: Erhard Denninger, Frederik Rachor (Hrsg.): Handbuch des Polizeirechts: Danger defense - criminal prosecution - legal protection . 5th edition. CH Beck, Munich 2012, ISBN 978-3-406-63247-1 . Markus Thiel: Police and regulatory law . 4th edition. Nomos, Baden-Baden 2019, ISBN 978-3-8487-4876-1 , § 2, marginal no. 1-2.
  3. ↑ Hans Boldt, Michael Stolleis: History of the Police in Germany , Rn. 11-19. In: Erhard Denninger, Frederik Rachor (Hrsg.): Handbuch des Polizeirechts: Danger defense - criminal prosecution - legal protection . 5th edition. CH Beck, Munich 2012, ISBN 978-3-406-63247-1 .
  4. ↑ Thorsten Kingreen, Ralf Poscher: Police and regulatory law: with the right of assembly . 10th edition. CH Beck, Munich 2018, ISBN 978-3-406-72956-0 , § 1, Rn. 2-4.
  5. ↑ Hans Boldt, Michael Stolleis: History of the Police in Germany , Rn. 40-43. In: Erhard Denninger, Frederik Rachor (Hrsg.): Handbuch des Polizeirechts: Danger defense - criminal prosecution - legal protection . 5th edition. CH Beck, Munich 2012, ISBN 978-3-406-63247-1 .
  6. ↑ Hans Boldt, Michael Stolleis: History of the Police in Germany , Rn. 14-16. In: Erhard Denninger, Frederik Rachor (Hrsg.): Handbuch des Polizeirechts: Danger defense - criminal prosecution - legal protection . 5th edition. CH Beck, Munich 2012, ISBN 978-3-406-63247-1 .
  7. ↑ Thorsten Kingreen, Ralf Poscher: Police and regulatory law: with the right of assembly . 10th edition. CH Beck, Munich 2018, ISBN 978-3-406-72956-0 , § 1, Rn. 5-6.
  8. ↑ Thorsten Kingreen, Ralf Poscher: Police and regulatory law: with the right of assembly . 10th edition. CH Beck, Munich 2018, ISBN 978-3-406-72956-0 , § 1, Rn. 9.
  9. ↑ Joachim Rott: 100 years "Kreuzberg judgment" of the PrOVG . In: New Journal for Administrative Law 1982, p. 363.
  10. ↑ Hans Boldt, Michael Stolleis: History of the Police in Germany , Rn. 50. In: Erhard Denninger, Frederik Rachor (Hrsg.): Handbuch des Polizeirechts: Danger defense - criminal prosecution - legal protection . 5th edition. CH Beck, Munich 2012, ISBN 978-3-406-63247-1 .
  11. ↑ Thorsten Kingreen, Ralf Poscher: Police and regulatory law: with the right of assembly . 10th edition. CH Beck, Munich 2018, ISBN 978-3-406-72956-0 , § 1, Rn. 14-17.
  12. ↑ Hans Boldt, Michael Stolleis: History of the Police in Germany , Rn. 58. In: Erhard Denninger, Frederik Rachor (Hrsg.): Handbuch des Polizeirechts: Danger defense - criminal prosecution - legal protection . 5th edition. CH Beck, Munich 2012, ISBN 978-3-406-63247-1 .
  13. ↑ Thorsten Kingreen, Ralf Poscher: Police and regulatory law: with the right of assembly . 10th edition. CH Beck, Munich 2018, ISBN 978-3-406-72956-0 , § 1, Rn. 18th
  14. ^ Dieter Kugelmann: Police and regulatory law . 2nd Edition. Springer, Berlin 2012, ISBN 978-3-642-23374-6 , Chapter 2, Rn. 15-18.
  15. ↑ BVerfGE 3, 407 (431) : Building report.
  16. ^ Daniell Bastian: West German police law under Allied occupation (1945–1955) . Mohr Siebeck, Tübingen 2010, ISBN 978-3-16-150424-2 , p. 26 .
  17. ↑ Markus Thiel: Police and regulatory law . 4th edition. Nomos, Baden-Baden 2019, ISBN 978-3-8487-4876-1 , § 2, marginal no. 5-6.
  18. ^ Dieter Kugelmann: Police and regulatory law . 2nd Edition. Springer, Berlin 2012, ISBN 978-3-642-23374-6 , Chapter 2, Rn. 21st
  19. ^ Johannes Dietlein, Johannes Hellermann: Public law in North Rhine-Westphalia: constitutional law, local law, police and regulatory law, public building law . 6th edition. CH Beck, Munich 2016, ISBN 978-3-406-69562-9 , § 3, Rn. 15-17.
  20. ↑ Volkmar Götz: The concern for public safety and order , p. 427 ff., 447 ff. In: Kurt Jeserich, Hans Pohl, Georg-Christoph von Unruh: German administrative history. Vol. 5: The Federal Republic of Germany . Deutsche Verlags-Anstalt, Stuttgart 1987, ISBN 3-421-06135-1 .
  21. ↑ Michael Bäuerle: 25 years of law of the Hessian police . In: Jürgen Distler, Clemens Lorei, Karl-Heinz Reinstädt (eds.): Festschrift for the 25th anniversary of the VFH Wiesbaden . Verlag für Polizeiwissenschaft, Frankfurt am Main 2005, ISBN 3-935979-72-X , p. 49 ff .
  22. ↑ Michael Bäuerle: Police law in Germany. Federal Agency for Civic Education, November 14, 2008, accessed on October 17, 2018 .
  23. ↑ Frank Ebert: Developments and tendencies in law to avert danger . In: State and municipal administration 2017, p. 10.
  24. ↑ Volkmar Götz: The development of general police and regulatory law (1994–1997). In: New journal for administrative law 1998, p. 679. Mark Zöller: Information systems and preliminary measures by the police, public prosecutor's office and intelligence services . CF Müller, Heidelberg 2002, ISBN 3-8114-5122-7 , pp. 77-78 . Michael Bäuerle: Police law in Germany. Federal Agency for Civic Education, November 14, 2008, accessed on September 3, 2018 .
  25. ↑ Volkmar Götz: The development of general police and regulatory law (1990-1993). In: New Journal for Administrative Law 1994, p. 652 (653). Mark Zöller: Information systems and preliminary measures by the police, public prosecutor and intelligence services . CF Müller, Heidelberg 2002, ISBN 3-8114-5122-7 , pp. 77-78 . Michael Bäuerle: Police law in Germany. Federal Agency for Civic Education, November 14, 2008, accessed on September 3, 2018 . Frank Ebert: Developments and tendencies in hazard prevention law . In: State and municipal administration 2017, p. 10.
  26. ↑ BVerfGE 65, 1 : Census.
  27. ↑ Hans Boldt, Michael Stolleis: History of the Police in Germany , Rn. 68-69. In: Erhard Denninger, Frederik Rachor (Hrsg.): Handbuch des Polizeirechts: Danger defense - criminal prosecution - legal protection . 5th edition. CH Beck, Munich 2012, ISBN 978-3-406-63247-1 .
  28. ↑ Thomas Petri: History of the Police in Germany , Rn. 90. In: Erhard Denninger, Frederik Rachor (Hrsg.): Handbuch des Polizeirechts: Danger defense - criminal prosecution - legal protection . 5th edition. CH Beck, Munich 2012, ISBN 978-3-406-63247-1 .
  29. ↑ Frank Ebert: Developments and tendencies in law to avert danger . In: Landes- und Kommunalverwaltung 2017, p. 10. Volkmar Götz: The development of general police and regulatory law (1990–1993). In: New Journal for Administrative Law 1994, p. 652.
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  175. ↑ VGH Kassel, judgment of November 11, 1997, 11 UE 3450–96 = New Journal for Administrative Law Jurisprudence Report 1999, p. 23.
  176. ↑ Frederik Rachor: The police action , Rn. 818. In: Erhard Denninger, Frederik Rachor (Hrsg.): Handbuch des Polizeirechts: Danger defense - criminal prosecution - legal protection . 5th edition. CH Beck, Munich 2012, ISBN 978-3-406-63247-1 .
  177. ↑ For a different definition in Mecklenburg-Western Pomerania see Frederik Rachor: Das Polizeihandeln , Rn. 820. In: Erhard Denninger, Frederik Rachor (ed.): Handbuch des Polizeirechts: Danger defense - criminal prosecution - legal protection . 5th edition. CH Beck, Munich 2012, ISBN 978-3-406-63247-1 .
  178. ↑ Thorsten Kingreen, Ralf Poscher: Police and regulatory law: with the right of assembly . 10th edition. CH Beck, Munich 2018, ISBN 978-3-406-72956-0 , § 24, Rn. 42-43. Frederik Rachor: The police action , Rn. 818. In: Erhard Denninger, Frederik Rachor (Hrsg.): Handbuch des Polizeirechts: Danger defense - criminal prosecution - legal protection . 5th edition. CH Beck, Munich 2012, ISBN 978-3-406-63247-1 .
  179. ↑ BVerfG, decision of June 30, 2011, 1 BvR 367/11 = Neue Juristische Wochenschrift 2011, p. 3217. BGHZ 156, 394 (398).
  180. ↑ Thorsten Kingreen, Ralf Poscher: Police and regulatory law: with the right of assembly . 10th edition. CH Beck, Munich 2018, ISBN 978-3-406-72956-0 , § 25, Rn. 12.
  181. ↑ Thorsten Kingreen, Ralf Poscher: Police and regulatory law: with the right of assembly . 10th edition. CH Beck, Munich 2018, ISBN 978-3-406-72956-0 , § 25, Rn. 18th
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  184. ^ Christoph Gusy: Police and regulatory law . 10th edition. Mohr Siebeck, Tübingen 2017, ISBN 978-3-16-155095-9 , Rn. 476.
  185. ^ Dieter Kugelmann: Police and regulatory law . 2nd Edition. Springer, Berlin 2012, ISBN 978-3-642-23374-6 , Chapter 2, Rn. 25-26.
  186. ↑ BVerfGE 97, 198 .
  187. ↑ Markus Thiel: Police and regulatory law . 4th edition. Nomos, Baden-Baden 2019, ISBN 978-3-8487-4876-1 , § 3, marginal no. 4-9.