Can the police search your car engine?
questions and answers What can the police do - and what not?
Kicks during an arrest in Frankfurt, the knee of a policeman on the neck of someone lying on the ground in Düsseldorf, a youngster who is pressed to the ground in Hamburg: Videos of police operations have led to discussions about the use of physical violence by law enforcement officers. But what does the legal situation say? When can the police arrest people, bring them to the ground or generally act with full physical effort?
Use of force must be appropriate
"Every police administrative act can in principle be enforced with compulsion," explains Clemens Arzt, professor of constitutional and administrative law at the Berlin School of Economics and Law. However, the application must also be necessary and appropriate in individual cases, he adds.
Coercion must be threatened
According to him, according to the current legal situation, it is sufficient that a person concerned does not comply with a police order. "As a rule, the legality of the order does not matter, which is of course problematic under the rule of law." However, a police officer usually has to threaten the use of force beforehand, as the doctor explains. There are only very few situations for immediate execution, i.e. the permitted use of coercion without prior threat. For example when someone is about to flee or attacks the officials.
Slow increase in measures
Even if coercion is allowed, the question of double proportionality always arises, according to the doctor. "The basic idea of every police measure is: The police must resort to the mildest means," said Arzt. In the case of a roadside check, this would mean that an officer would first stand in the way. Then try to hold the victim by the arm. If that doesn't work, try to do it in pairs and only later to bring him to the ground. So it is about a slow increase in coercive measures. What is important here: "Legally, there is no room for interpretation," said Arzt. "Proportionality is not a question of discretion. Either a measure is proportional or it is no longer it."
Great danger from knees on the neck
On the subject of proportionality in the case in Düsseldorf, where a person was tied to the neck with one knee, law professor Markus Thiel from the German Police University in Münster told the Süddeutsche Zeitung that the neck and vertebrae were taboo. Fixing the head is therefore not impermissible per se, but when the knee slipped towards the neck, the police officer Thiel should have corrected immediately, according to Thiel. The risk of vertebral injuries is too great. In addition, a risk of suffocation can quickly arise.
The police law
What the police are allowed to do and what not, results from the police and regulatory law (POR). Each federal state issues its own POR, which, however, is largely based on a uniform draft and has both the Criminal Code and the Basic Law as the legal basis. The POR regulates when which authority may initiate certain steps in order to avert "dangers" or to pursue and arrest perpetrators.
"Danger" is understood to mean "threatening damage to public security or order", for example the right of the individual to his life, to physical integrity or to his property. The police come, for example, in the event of theft, burglary, bodily harm, serious traffic accidents or murder.
Public safety also includes events and demonstrations. The police usually separate two camps (demonstrators and counter-demonstrators, two fan groups from rival football clubs ...) so that they cannot attack each other.
The police can:
- Determine my identity: ask for my name, date and place of birth, home address and nationality. Because you don't have to have your ID card with you!
- Take me to the police station "to avert danger" (e.g. if you stumble on the street drunk and endanger other road users and yourself)
- Stop my vehicle and check it from the outside, request a driver's license and vehicle registration, check the warning triangle and first-aid kit
- Take me to the guard for a blood sample if you refuse to "blow" (if you suspect alcohol or drugs behind the wheel)
- Arrest me temporarily, but no more than 24 hours (without a judicial order of remand), in emergencies up to 48 hours
The police are not allowed to:
- Search my vehicle. That includes the trunk as well.
- Shine a flashlight in my eyes, let myself walk in a line, test my sense of balance, etc. (if you suspect alcohol or drugs behind the wheel)
- Palpate me (body search), unless you agree or there is a well-founded suspicion of a criminal offense (e.g. drug trafficking, theft). To be silent here means to agree!
- Search my bag unless there is reasonable suspicion of a criminal offense (e.g. drug trafficking, theft)
- Forcing me to sign any paper, protocol, etc.
- Search my apartment - this requires a court order. BUT: "To avert danger", e.g. if there is domestic violence and a man beats up his wife or children inside, the police can of course intervene immediately
Checks that are independent of suspicion and cause, so-called "veil searches", are still permitted in most federal states due to the abolition of border controls, especially in order to fight internationally operating criminal gangs.
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