What can't the cops do
Investigation against police officers - When police officers are accused of criminal or administrative offenses
The police have a monopoly on the use of force by law. It is authorized to question and search people and, under certain circumstances, even to exercise physical violence. However, the rights of police officers are clearly limited. But which offenses count as a criminal offense? What are the consequences of guilty police officers? What can people who have been victims of police violence do? And what happens in the opposite case - when police officers are wrongly accused?
What can the police do - and what not?
Control of pedestrians
When checking pedestrians, police officers have the right to establish identity. Accordingly, they can request identification. An identity check or search of unsuspecting persons within the meaning of Section 103 of the Code of Criminal Procedure (StPO for short) is only permitted if there are indications that the search contributes to the apprehension of a suspect or to securing evidence. Searching the accused is also permitted in accordance with Section 102 of the Code of Criminal Procedure if there are indications that the suspect has committed a criminal offense.
Control of vehicle drivers
Vehicle drivers can be subjected to a general traffic control in accordance with Section 36 (5) of the Road Traffic Act (StVO for short). Police officers are allowed to:
- Ask people to stop and get out of the vehicle
- Request ID, driver's license and registration certificate Part I.
- check whether the first aid kit and warning triangle are present
However, you are not allowed to search the vehicle for no reason or carry out the so-called Romberg test.
Physical examinations according to § 81a StPO
Taking blood and urine or sweat tests is a serious invasion of physical integrity. These investigations may only be carried out on a suspect and require the approval of a judge. Only in the case of “imminent danger” can police officers decide to physically examine a person without the consent of the judge. There is imminent danger if the officers have to react immediately, e.g. to be able to prove that a person was under the influence of alcohol or drugs at the said time.
Police Misconduct: Consequences and Possible Penalties
Searching unsuspecting persons without their consent constitutes the offense of persecution of innocent persons (Section 344 of the Criminal Code). He is punished with a prison sentence of three months to five years.
Performing a physical examination without risk of delay and with the consent of the person concerned is considered to be bodily harm in office according to Section 340 StGB and is punishable by a fine or imprisonment for up to five years.
In addition to prosecution, police officers also face disciplinary action in these cases. If facts become known that suggest a suspicion of an official offense, the supervisor initiates disciplinary proceedings. If the civil servant has demonstrably violated the duties incumbent on him (see Section 77 (1) of the Federal Civil Servants Act), there is a risk - depending on the severity of the offense - an official reprimand, a fine or even a removal from service with subsequent withdrawal of the pension.
Administrative offenses or criminal offenses in the service versus private
According to Article 3 of the Basic Law, all people are equal before the law. However, if a police officer on duty fulfills the requirements of a criminal law, he can initially refer to the legal bases of the police laws and the code of criminal procedure. Under certain circumstances, these police authorization norms lead to a justification of his actions - and thus to impunity. Such a justification is given, for example, when police officers themselves are victims of violence. In this case, they are authorized in accordance with Section 32 of the Criminal Code to undertake a defense action required to avert danger. Depending on the situation, this can also include physical violence. In addition, the use of direct coercion is permissible if this is necessary to enforce an informal police measure - for example, a dismissal.
However, if a police officer fulfills the requirements of a criminal law without justification, the offense will be prosecuted by the public prosecutor, as is the case with any other citizen. But: Many special norms, such as Section 340 of the Criminal Code, make criminal offenses during working hours subject to a higher penalty than would be imposed for offenses outside working hours. In addition, disciplinary proceedings are initiated in the event of criminal offenses on duty, which may have consequences for the civil servant's career.
Crimes and administrative offenses that police officers commit in their private free time are prosecuted and punished just like any other citizen. However, if there is a connection between the act committed and the duties associated with the office of police officer, disciplinary proceedings will also be initiated.
What can police violence victims do?
In Germany there is no independent complaints office to report misconduct by police officers. Those affected can only file a report with the local police station or the responsible public prosecutor's office. The report should be made in cooperation with an experienced legal advisor.
A reliable private legal protection insurance helps in finding a competent lawyer. In addition, those affected are free to file a supervisory complaint against the police officer (s) with the responsible police station. This is checked and, in the event of an urgent suspicion, leads to the initiation of investigative proceedings.
False accusation of police violence - what are the possible consequences?
The events of New Year's Eve in Cologne in 2015 and the events at the G20 summit in Hamburg show: Time and again, participants in public events raise serious allegations against police officers. When clarifying the question of guilt, however, there is often a lack of credible statements from witnesses and injured parties. Viewing existing video material also only occasionally helps to clarify the situation. Many recordings show the crime, but not the context that led to it - and thus possible reasons for justification, which have a relieving effect on police officers in the event of an investigation. Do police officers still face consequences if they are wrongly accused of a crime? What punishment should injured parties expect if they knowingly wrongly suspect police officers?
If it turns out in the course of the investigation that the charge of a criminal offense was not justified in the office, officials have nothing to fear. For them, an investigation that has been suspended due to a lack of evidence has no legal or official consequences.
A reliable private legal protection insurance with extended criminal legal protection for the defense against the accusation of an allegedly committed offense is important for police officers.
However, anyone who accuses police officers of a crime against their better knowledge - that is, deliberately lies - and reports this to the police or the public prosecutor's office, is liable to prosecution under Section 164 of the Criminal Code. Prerequisite: The offender acts with the intention of bringing about official proceedings or other official measures, such as a house search, against the accused police officer (s). Possible sentences range from a fine to five years in prison.
If the suspicion was recorded as a supervisory complaint, it will - if disciplinary proceedings are pending - be entered in the personnel file, but according to Section 112 (1) sentence 1 BBG, federal officials are entitled to have this removed as soon as the Accusation turns out to be untrue.
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