Der Notstand im Recht der Gefahrenabwehr

Abstract

The principle of public necessity in German security law

First outlined by the jurisdiction of the Prussian Higher Administrative Court, the principle of so called “polizeilicher Notstand” (public necessity) authorizes public authorities to take measures against non-responsible third persons in order to ensure public safety. Recourse to the principle of “polizeilicher Notstand” is limited by the principles of subsidiarity and proportionality which both have a specific meaning in this context. Under the constitution, “polizeilicher Notstand” is only permissible if a factual indication of an immediate and significant danger to a predominantly important legally protected interest (life, physical integrity, personal freedom, private property, State institutions) exists. Any person coerced under the principle of “polizeilicher Notstand” is entitled to claim for compensation against the public authority that benefited from the measure. Before taking recourse to the principle of “polizeilicher Notstand”, public authorities must exhaust their own capacities first and they must try to bundle their resources through administrative cooperation. Especially as far as the freedom of assembly is concerned, in order to safeguard public safety, public authorities primarily have to protect peaceful assemblies from violent counter-demonstrations before taking action against peaceful individuals. Nowadays the principle of “polizeilicher Notstand” is no longer solely based on judge-made law but codified in different fields of law and faces new challenges, for example as far as the liability of access-providers is concerned.