FAQ
Police and security law
Whether in the context of a control of persons, on a demonstration or even in front of one’s own doorstep, every person comes into contact with the police at some point in his or her life.
In this context, the police perform their task of ensuring or restoring public order and safety. But what does that mean exactly and where are the limits?
Note: The Know Your Rights Initiative e.V. is a student and non-profit association. All content published by us is carefully checked by experts, but is not a substitute for legal advice from a qualified lawyer.
General information
The police cannot order the classic “blowing” test or so called breathalyser. However, they can have a blood test carried out (by a doctor) if facts (even an unsafe driving style is sufficient) justify the assumption that the person was driving drunk. It may therefore be easier to agree to the breath test voluntarily. Outside of road traffic, such a test may only be ordered by a judge.
In order to avert a danger, the police acc. Art. 16 para. 1 sentence 1 no. 1 of the PAG (Bavarian Police Duties Act). If an order to leave is not complied with, there is a risk of arrest. An expulsion order is the temporary removal of a person from a place or a temporary ban on entering a place.
Any form of force (or “direct coercion”) can only be lawful if it is appropriate, necessary and proportionate. Direct coercion may only be used by the police if no other means are available to enforce the required measure (e.g. arrest) (Art. 75 PAG).
Detention (Art. 17 PAG) is characterized by the fact that the person concerned is detained in a manner that deprives them of their liberty and is thus prevented by the police from moving freely. Persons can then be taken into custody in order to avert danger and prevent the occurrence of harm, either to protect the person themselves or to protect others from dangers emanating from the person. In particularly serious cases, a person may also be taken into custody to prevent future criminal offenses.
In Germany, there is no independent advice center for reporting misconduct by the police. The only option for those affected is to file a complaint with the local police station or the responsible public prosecutor’s office. The complaint should be made in cooperation with a lawyer or the legal emergency service. Seek legal advice as soon as possible after the measure has been taken, because only then can an appeal/interim legal protection be lodged.
Personal control
In principle, you have a general duty to provide certain information to the police. This means that the surname, first name, date and place of birth, home address and nationality must be stated. However, you do not have to give the police any further information for the time being. In addition to the general obligation to provide information, there is also the possibility of establishing identity. An ID card must usually be presented when establishing your identity.
The police must always have a reason to carry out checks. For example, your personal details may be documented if you have information that is necessary for the fulfillment of a police task. Such a reason may exist in the case of identity verification:
Defense against danger or protection of private rights;
being present at a dangerous place. an endangered place;
a checkpoint near the border (Art. 12 PAG).
If you are stopped for one of these reasons, you must provide information. If you fail to do so, either direct coercion may be used or you and your bag may be searched.
Although there is no obligation to carry an ID document, an ID document can make personal checks considerably easier. You may always ask for the reason for the measure. So ask politely if a police measure seems disproportionate to you. If you still assume that an arbitrary measure has been taken, do not resist on the spot. As a rule, this does not lead to the police aborting their action, i.e. in such cases it makes sense to make a note of the ID numbers of the officers involved and to consult a lawyer after the action.
The principle for searches is that facts must justify the assumption that the person is carrying items that may be seized by the police, such as weapons, drugs or stolen property. (Art. 21 PAG) Personal and bag checks are an infringement of the right to respect for privacy. If there are no such indications of suspicion from the outset, the search is not lawful. Suspicion cannot be based on the fact that a person is dressed “sloppily”, for example. However, if you refuse to provide personal details, for example, a search can also be carried out to find identification documents.
Demonstrations
The following applies to open-air assemblies: In principle, yes! The only exceptions are spontaneous gatherings that arise at short notice without central planning. (Art. 13 BayVersG / Bavarian Assembly Law) Anyone who organizes an unannounced demonstration is committing an administrative offence (up to €3,000 fine, Art. 21 Para. 1 No. 7 BayVersG). The unregistered demonstration may still take place in principle, but the police will be able to (and presumably do) break it up under much less stringent conditions.no registration is required for gatherings in enclosed spaces.
According to Art. 15 BayVersG, the police can break up or restrict open-air assemblies in Bavaria if this is necessary to avert danger, e.g. if the demonstration turns violent or if residents/traffic are disturbed beyond an acceptable level. u003cbru003eIn addition, it may exclude individual participants from the assembly if they pose a particular danger or if they have weapons or protective equipment with them or are wearing a mask. However, the dissolution of an assembly is generally the last resort, so that the assembly authority or the police must first take milder measures (restrictions on the assembly, e.g. only use of a certain lane for the assembly instead of the entire street or exclusion of masked or violent participants).u003cbru003eImportant: During an assembly, the police may generally only take these measures under the BayVersG and not their usual powers under the PAG. However, this no longer applies after the dissolution.
Apartment search
The police may not enter your home and search it without a significant reason (Art. 23 PAG). In principle, you should not deny the police access to your home. It can be clarified afterwards whether the police were authorized to enter your home. However, you should only let the police in if this is in your best interest: for example, if there is danger in your home, such as a smell of gas. Otherwise, you should expressly object, have the objection recorded and otherwise not offer any active resistance. It is advisable to be cooperative, but not to give any information about an accusation.
The police may enter and search your home without your consent if there are clear indications that there are persons or objects in the home that may be arrested or seized. The same applies if the entry and search is necessary to avert an urgent danger to a significant legal interest. These are, for example, if there are indications that people without the required residence permit are living there or if the apartment is used as accommodation for asylum seekers and unauthorized residents. This exception only applies to preventive police action (Art. 23 III PAG), i.e. not to measures in the area of criminal prosecution (Section 102 StPO).
If you have not consented to the police entering and searching your home, they generally need a court order. An exception applies in the event of imminent danger, i.e. if obtaining a court order would jeopardize or frustrate the success of the search. Imminent danger cannot be based on mere suspicions or investigative experience; concrete evidence is required in individual cases. In addition to the period of the search, the search warrant must also specify the purpose and objective of the search and the danger or criminal offense to be averted. If certain evidence is being looked for, this must be specified.
It is important that you get a copy of the search warrant or take a photo of it. If certain rooms are specified in the search warrant, the police may only search these rooms. Even if the police are looking for certain items, you can show the items to the police to prevent a search of your home. This way you can prevent accidental finds in the home. You can object to the confiscation of the items. You don’t have to hand over any passwords/PINs during the search or, for example, provide a password. Activate Face ID. If a search is carried out due to imminent danger, there is no search warrant. Objecting to the existence of imminent danger on the spot is rarely successful. At the end, you should request a transcript or search certificate. If consent is required, also e.g. on a form, you should always object and not sign anything.
Home searches can take place during the day and at night. However, at night (9 p.m. to 6 a.m.), higher requirements apply to the authorization of searches, namely only if it is a matter of prosecution in the act, in the event of imminent danger and to avert a present danger to a significant legal interest.
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Please note: We do not offer legal advice on specific situations and circumstances.
Please contact the relevant advice centers or specialist lawyers.