Germany

Constitutional Provisions

The Constitution of the Federal Republic of Germany is the Basic Law, as last amended on 19 December 2022. The Basic Law stipulates that human dignity is inviolable and obligates the state to respect and protect human rights.Art. 1(1), Basic Law for the Federal Republic of Germany, as last amended on 23 December 2014.Every person is accorded the rights to life and to physical integrity.Art. 2(2), Basic Law for the Federal Republic of Germany, as last amended on 23 December 2014.

According to Article 8 of the Basic Law:

(1) All Germans shall have the right to assemble peacefully and unarmed without prior notification or permission.

(2) In the case of outdoor assemblies, this right may be restricted by or pursuant to a law.

Treaty Adherence

Global

Regional

National Legislation

Police Use of Force

At federal level, police use of force is governed by the 1994 Federal Police Law. This allows the police to use necessary measures for the performance of their duties.S. 14(1), 1994 Federal Police Law.Where several options exist to achieve the desired law enforcement objective, the least harmful one for the suspect and the general public must be selected.S. 15(1), 1994 Federal Police Law.

Under the Code of Criminal Procedure, everyone is entitled to act in self-defence, which is defined as "any defensive action that is necessary to avert an imminent unlawful attack on oneself or another."S. 32, 1987 Code of Criminal Procedure (as amended through 2013).According to Section 34, 

A person who, faced with an imminent danger to life, limb, freedom, honour, property or another legal interest which cannot otherwise be averted, commits an act to avert the danger from himself or another, does not act unlawfully, if, upon weighing the conflicting interests, in particular the affected legal interests and the degree of the danger facing them, the protected interest substantially outweighs the one interfered with. This shall apply only if and to the extent that the act committed is an adequate means to avert the danger.

 Use of Firearms in the Border Force

Section 11 of the 1961 Federal Law on Direct Force in the Exercise of Authority by Federal Law Enforcement Officers notes that law enforcement officers may use firearms while on border duty against persons who attempt to evade repeated instructions to stop, or who attempt to evade physical inspection, or the inspection of an object or their means of transport, by fleeing. If it can be assumed that a verbal instruction will not be understood, it may be replaced by a warning shot.

Use of Force in Custodial Settings

Section 39 of the Federal Police Law governs the general rules regarding custody. According to Section 41 on the treatment of detainees, detainees may only be subjected to such restrictions as are necessary for the purpose of order or the deprivation of liberty in custody.

State-level Rules on Police Use of Force

At state level, the following laws govern police use of force:

• Baden-Württemberg: 2020 Police Law (sections 63-69)
• Bavaria: 1990 Police Duties Act (sections 77-86)
• Berlin: Berlin’s 2006 General Act for the Protection of Public Safety and Order in Berlin does not contain provisions on police use of force. Section 17 of the 1961 federal-level Law on Direct Force in the Exercise of Authority by Federal Law Enforcement Officers notes that Berlin is covered under the provisions of this federal-level law.
• Brandenburg: 1996 Brandenburg Police Law (sections 60-69)
• Bremen: 2001 Police Law (sections 100-108)
• Hamburg: 1966 Law on the Protection of Public Safety and Order (sections 17-26)
• Hesse: 2005 Law on Public Safety and Order (sections 52-63)
• Lower Saxony: 2019 Police and Regulatory Authorities Act (sections 71-79)
• Mecklenburg-Western Pomerania: 2020 Law on Public Safety and Order (sections 101-113)
• North Rhine-Westphalia: 2003 Police Law (sections 57-66)
• Rhineland-Palatinate: 2020 Police and Regulatory Authorities Act (sections 76-86)
• Saarland: 1989 Police Law (sections 44-58)
• Saxony: 2019 Saxon Police Enforcement Act (sections 39-46)
• Saxony-Anhalt: 2013 Law on Public Safety and Order (sections 60-68)
• Schleswig-Holstein: 2003 General Administrative Law (sections 250-261)
• Thuringia: 1992 Law on the Duties and Powers of the Police (sections 58-65).

Overlap in state-level legislation

All 16 state-level laws set out the legal foundations for use of force; a definition of use of force, including a list of approved weapons (see table below); the need for a warning prior to using force; general rules for the use of firearms; and the use of firearms against persons.

The general rules of firearms state that these may only be used if no other form of direct force is successful; they may only be used against persons if the use of firearms against things does not achieve the intended effect. Firearms may only be used against persons to render them incapable of attack or escape; a shot that is lethal or highly likely to be lethal is only permissible if it is the only means of warding off an immediate danger to life or limb. The same condition applies to the use of firearms against persons who appear to be under the age of 14, and to their use when uninvolved persons might be hurt with a high probability.

Firearms may only be used against persons in five scenarios:

1. to ward off an immediate danger to life or limb
2. to prevent the imminent occurrence or continuation of a felony or misdemeanour involving the use or carrying of firearms or explosives
3. under certain conditions, to stop a person who is attempting to evade arrest or identification by fleeing
4. under certain conditions, to prevent the escape of a person who is to be held in official custody
5. to prevent the forcible release of a person from official custody.

The relevant state laws all contain a section on the principle of proportionality, which is identical to the principle of proportionality in the 1994 Federal Police Law. All states apart from Baden-Württemberg and Saxony have legislation regarding police officers’ following of orders when using force, as well as on aiding persons who are injured as a result of use of force. Baden-Württemberg is the only state without a provision on the use of fetters.

Differences in state-level laws on police use of force

Approved weapons

There are differences among the 16 states regarding which tools and weapons are allowed for use of force by the state-level police: In some of the laws, different provisions apply for special units or for federal-level police who are assisting the state-level police inside the respective state. 

Use of firearms against persons in a crowd

The laws of Bavaria, Rhineland-Palatinate, Thuringia, Saxony, Saxony-Anhalt, Lower Saxony, Hamburg, Brandenburg, and Mecklenburg-Western Pomerania contain sections on the use of firearms against persons in a crowd. In general, firearms may only be used against persons in a crowd if serious acts of violence come from within the crowd and other measures do not promise success. If a person does not leave a crowd after being repeatedly threatened with the use of firearms despite being able to leave, he or she is not to be regarded as a bystander.

Use of explosives

The laws of Baden-Württemberg, Saarland, Rhineland-Palatinate, Hesse, Thuringia, Saxony, Saxony-Anhalt, Lower Saxony, Brandenburg, Berlin, Schleswig-Holstein and North Rhine-Westphalia contain sections on the use of explosives. For Saarland and Saxony-Anhalt, the respective section states that the use of explosives is not permitted. Rhineland-Palatinate, Hesse, Thuringia and Lower Saxony forbid the use of explosives against persons. For Saxony, section 46 of the Saxon Police Enforcement Act on “special weapons” states that special weapons may only be used when

1. The use of these weapons is necessary to avert a danger to the lives of the police officers on duty or uninvolved third parties, or these persons have made use of firearms or explosives and the previous use of other firearms has been unsuccessful or appears unsuitable.
2. Special weapons may only be used to ward off an attack. They may not be used against persons in a crowd.
3. The regulations on firearms also apply to machine guns and hand grenades.

For Brandenburg, section 69 of the 1996 Brandenburg Police Law on “detonators and explosives” states:

1. Detonators and explosives may not in principle be used against persons.

2. By way of exception, explosives may only be used by special units against persons in defence against terrorist threats and only if these persons are carrying weapons of war, when other weapons have been used unsuccessfully or their use clearly promises no success; and a danger to bystanders can be ruled out with a probability bordering on certainty.

For Berlin, section 14 of the 1961 Law on Direct Force in the Exercise of Authority by Federal Law Enforcement Officers states that sections 9 to 13 of the law apply for the use of explosives. Sections 9 to 13 cover authorised persons for the use of firearms, use of firearms against persons, use of firearms in border force, special regulations for the use of firearms and warnings.

For Schleswig-Holstein, section 256a of the 2003 General Administrative Law on rules for the use of explosives states that explosives may only be used against things. However, exceptions apply under which the harming of persons by explosives may be accepted "if facts indicate that the use of explosives may cause harm to persons, explosives may only be used: to avert a present danger to life or limb, or to prevent the imminent commission or continuation of a felony or misdemeanour involving the use or carrying of firearms or explosives, and only if other measures of direct coercion have been used unsuccessfully or obviously do not promise success".

For North Rhine-Westphalia, Section 66(2) of the 2003 Police Law stipulates that hand grenades may not be used against persons in a crowd, and Section 66(4) provides that explosives may not be used against persons.Ministerium des Innern des Landes Nordrhein-Westfalen, Polizeigesetz des Landes Nordrhein-Westfalen, at: https://recht.nrw.de/lmi/owa/br_text_anzeigen?v_id=3120071121100036031.

Recent developments in state laws on police use of force

In a report of 14 December 2023, Amnesty International criticised recent discussions of tightening of Berlin’s police law, especially the extension of preventive detention and the authorisation to use tasers which, the report explains, can seriously injure or even kill people, especially if those affected have pre-medical conditions, are under severe mental stress or use drugs. The report also states that the use of tasers should only be an alternative if there is otherwise a risk of death from firearms but that the law does not guarantee this.Amnesty International, Deutschland: Verschärfung des Berliner Polizeigesetzes Bedroht Freiheitsrechte, 14.12.2023, at: https://www.amnesty.de/deutschland-berlin-polizeigesetz-verschaerfung-freiheitsrechte.

As of 6 February 2024, Rhineland-Palatinate was in the process of updating its Police Law. The new provisions include expanding the use of electronic ankle cuffs to cases of domestic violence, as well as, in some cases, to offenders after serving their sentence."Neues Polizeigesetz: Auf dem Weg zum Überwachungsstaat", FDP, at: https://fdp-landtag-bw.de/neues-polizeigesetz-auf-dem-weg-zum-ueberwachungsstaat/; and “Rheinland-Pfalz bekommt moderneres Polizeigesetz”, L’essentiel, 6 February 2024, at: https://www.lessentiel.lu/de/story/bodycams-und-co-rheinland-pfalz-bekommt-moderneres-polizeigesetz-103037789.The new law, which was due to be discussed in parliament later in the year, has received initial approval from the police trade union in Rhineland-Palatinate.“Polizei in RLP soll Bodycams auch in Wohnungen einsetzen dürfen“, Tagesschau, 6 February 2024, at: https://www.tagesschau.de/inland/regional/rheinlandpfalz/swr-fussfesseln-bodycams-neue-regelungen-fuer-die-polizei-in-rlp-geplant-100.html.

Police Oversight

According to Amnesty International, both federal authorities and many states have still to establish independent investigation mechanisms or oversight bodies. It is claimed that nine in ten police officers are not convicted of any offence following an investigation.

In a 2022 situation report, the German Bundestag (Parliament) outlined the status quo regarding independent police commissioners in the federal states. Seven state parliaments have dedicated independent police commissioners: Baden-Württemberg, Berlin, Bremen, Hesse, Mecklenburg-Western Pomerania, Rhineland-Palatinate and Schleswig-Holstein.Deutscher Bundestag, Sachstand: Unabhängige Polizeibeauftragte in den Ländern, 2022, p. 4.In Brandenburg, the state parliament voted for the creation of an independent police commissioner role in December 2022."Landtag richtet unabhängige Beauftragtenstelle für Angelegenheiten der Polizei ein", Landtag Brandenburg, 16 December 2022, at: https://www.landtag.brandenburg.de/media_fast/6/PM_151_Stelle%20PolizeibeauftragteR.pdf.The police commissioners are independent in exercising their office.Deutscher Bundestag, Sachstand: Unabhängige Polizeibeauftragte in den Ländern, 2022, p. 4.

Six states have established police commissioners or confidence and complaints centres, which are also responsible for the police, within the structures of their state authorities: Hamburg, Lower Saxony, North-Rhine Westphalia, Saxony, Saxony-Anhalt and Thuringia.Deutscher Bundestag, Sachstand: Unabhängige Polizeibeauftragte in den Ländern, 2022, p. 15.Bavaria and Saarland do not have an equivalent institution, either in the state parliament or in the executive. Deutscher Bundestag, Sachstand: Unabhängige Polizeibeauftragte in den Ländern, p. 4.

In its 2019 Concluding Observations on Germany, the UN Committee against Torture stated that:

While welcoming the establishment of ombudspersons in several Länder to facilitate the independent and impartial investigation of allegations of criminal conduct by police officers, the Committee remains concerned that in other Länder and at the federal level, no such mechanism exists. The Committee is concerned that the State party does not consider it necessary to establish such a mechanism at the federal level, despite the recent judgment by the European Court of Human Rights in Hentschel and Stark v. Germany, ... and other reports by civil society that investigations of police misconduct have been inadequate.

Caselaw

Global

Views and Concluding Observations of United Nations Treaty Bodies

In its 2021 Concluding Observations on Germany, the Human Rights Committee expressed its concern about 

reports of the excessive use of force by law enforcement officials in the State party, including in the context of policing assemblies, such as the Group of 20 summit held in Hamburg in 2017. It is also concerned that Federal police officers, as well as some law enforcement officials at the Länder level, are not required to wear identity badges, which hampers the investigation of allegations of excessive use of force.

The Committee was also concerned that a significant number of complaints of ill-treatment by law enforcement officials do not reach the courts. 

The Committee recommended that:

The use of force by law enforcement officials, including during peaceful assemblies, should be brought into line with the Covenant, the United Nations Human Rights Guidance on Less-Lethal Weapons in Law Enforcement and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. The State party should also take all steps necessary, including consideration of mandatory identification badges for all law enforcement officials, to ensure the effective investigation of allegations of excessive use of force and the prosecution and punishment of those responsible. 
 

Regional

Hentschel and Stark v. Germany (2017)

The case concerned the complaint by two football supporters of having been ill-treated by the police following a match and of the inadequacy of the ensuing investigation. The Court was unable to establish beyond reasonable doubt that the events had happened as described by the applicants. As regards the investigation, the Court observed that the helmeted police officers of the riot control units had not worn any name tags or other individually identifying signs, but only identification numbers on the back of their helmets. Therefore, other measures to establish the identities of the persons responsible for the alleged ill-treatment had become especially important. However, the difficulties resulting from the lack of identifying insignia had not been sufficiently counter-balanced by other investigative measures. Notably, only excerpts of the video material recorded by the riot units had been provided to the investigating unit and some potentially relevant witnesses had not been identified and questioned.

Gäfgen v. Germany (2010)

In its 2010 judgment in this case, the Grand Chamber of the European Court of Human Rights held that to threaten an individual with torture may constitute at least inhuman treatment.European Court of Human Rights, Gäfgen v. Germany, Judgment (Grand Chamber), 1 June 2010 (as rectified on 3 June 2010), §91.In the case at hand, the Court was unable to conclude that Mr Gäfgen’s complaints of physical assaults and injuries and the alleged threat of sexual abuse during interrogation were established beyond reasonable doubt.European Court of Human Rights, Gäfgen v. Germany, Judgment (Grand Chamber), 1 June 2010 (as rectified on 3 June 2010), §98.It did conclude that threat of imminent and severe physical pain was proven, observing that the threat was not a spontaneous act but was premeditated and calculated in a deliberate and intentional manner.European Court of Human Rights, Gäfgen v. Germany, Judgment (Grand Chamber), 1 June 2010 (as rectified on 3 June 2010), §104.The Court noted that

the fear of physical torture may itself constitute mental torture. However, there appears to be broad agreement, and the Court likewise considers, that the classification of whether a given threat of physical torture amounted to psychological torture or to inhuman or degrading treatment depends upon all the circumstances of a given case, including, notably, the severity of the pressure exerted and the intensity of the mental suffering caused.European Court of Human Rights, Gäfgen v. Germany, Judgment (Grand Chamber), 1 June 2010 (as rectified on 3 June 2010), §108.

The plaintiff had abducted and killed an 11-year-old boy and the police had used threats of torture to seek to persuade him to confess as to his whereabouts.

State-level Caselaw

Berlin

In 2022, the Berlin police was tasked with bringing 64-year-old Medard Mutombo, who was suffering from schizophrenia, to the closed psychiatric ward. Mutombo collapsed into a coma and died in hospital three weeks later; the cause was not identified. There were preliminary proceedings against officers of the Berlin police for assault in office; in May 2023, the state prosecutor terminated the proceedings on the grounds that there was no evidence of wilful or negligent misconduct.J. Sagmeister, "Ermittlungen gegen Polizeibeamte eingestellt – Bruder legt Beschwerde ein", RBB24, 10 May 2023, at: https://www.rbb24.de/panorama/beitrag/2023/05/berlin-spandau-polizei-einsatz-toedlich-mutombo-ermittlungen-eingestellt.html.In August 2023, a media outlet reported that it received information from the state prosecutor’s office on its decision to reopen the investigations against several police officers following complaints by the brother of the deceased and a decision by the Berlin State Prosecutor’s General Office.J. Sagmeister, "Berliner Staatsanwaltschaft nimmt Ermittlungen gegen Polizisten wieder auf", RBB24, 21 August 2023, at: https://www.rbb24.de/panorama/beitrag/2023/08/wieder-ermittlungen-tod-nach-polizeieinsatz-berlin-spandau.html.

North-Rhine Westphalia

In 2022, sixteen-year-old Mouhamed Dramé of Senegalese descent, was shot and killed in Dortmund by submachine gun shots from a police officer."Tod von Mouhamed Dramé: Prozess gegen Polizisten startet, WDR, 19 December 2023, at: https://www1.wdr.de/nachrichten/ruhrgebiet/fall-mouhamed-drame-prozess-100.html.A media report states that the young man was suffering from mental distress and, according to the caretaker at his youth welfare facility, was at risk of killing himself with a knife. The police officers used stun guns and pepper spray. Subsequently the young man was claimed to have threatened the officers with his knife. A police officer shot him five times with a submachine gun, and the young man died in hospital."Ralf Bosen: Killing of youth sparks debate about German police brutality", Deutsche Welle, 8 December 2022, https://www.dw.com/en/police-brutality-in-germany-killing-of-16-year-old-sparks-debate/a-62791336.On 19 December 2023, the Dortmund district court opened the proceedings against five involved police officers. The shooter was indicted for manslaughter. The other four officers are accused of grievous bodily harm; the officer in charge was additionally accused of incitement to causing grievous bodily harm. The proceedings were ongoing at the time of writing with eleven days of trial planned through April 2024."Tod von Mouhamed Dramé: Prozess gegen Polizisten startet", WDR, 19 December 2023, at: https://www1.wdr.de/nachrichten/ruhrgebiet/fall-mouhamed-drame-prozess-100.html. 

Academic Study of Police Use of Force

In May 2023, a research group on “Assault in office by police officers” at the Goethe Universität Frankfurt am Main published a book on their findings on excessive use of force by the police and their retrospective review. The research project forms the first instance of comprehensive scientific findings on excessive use of force by police officers in Germany and the treatment of incidents in the criminal law system. 

For the research, over 3.300 participants were questioned and over 60 qualitative interviews conducted with police officers, judges, public prosecutors, victim counselling centres and lawyers. According to their findings, over 90% of proceedings were terminated; charges were pressed in 2% of cases according to a statistic by the state prosecutor’s office. In 2021, 93% of finalised criminal proceedings against police officers for unlawful use of force were discontinued due to a lack of sufficient suspicion in accordance with Section 170(2) of the Code of Criminal Procedure. In 4% of cases, the public prosecutor’s offices discontinued the proceedings despite sufficient suspicion against the police officers subject to conditions or negligibility. According to criminal prosecution statistics from the Federal Statistical Office mentioned in the findings, 80 defendants were convicted in proceedings for assault in public office in 2021. Of those convicted, 27 people were sentenced, 25 were acquitted and 28 others had their cases dropped by the court. The researchers highlight that the conviction rate of 34% is significantly lower than the average for all criminal proceedings at 81.4%.L. Abdul-Rahman et al., Übermäßige polizeiliche Gewaltanwendung und ihre Aufarbeitung: Kernbefunde des DFG-Forschungsprojekts, Goethe-Universität, Frankfurt am Main, May 2023.

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