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30th April 1953 – III ZR 204/52

Bundesgerichtshof judgment of 30th April 1953 – III ZR 204/52 (Hamm).
BGH LM § 839 [Fg] BGB no 5

This case is first published in the German Law Archive courtesy of:
Translated German Cases and MaterialsUnder the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
Translated by Mr Raymond Youngs, Southampton Institute


The defendant asks first for a re-examination of the appeal court’s opinion that the police officers were under an official duty to take action against the members of a gang of thieves, two of whom later committed a break-in at the plaintiff’s. The appeal in law refers in this connection to the decision of the 11th June 1952 [reference omitted]. There is no ground to deviate from the principles set out in this decision. Accordingly it cannot be doubted that the police officers were under a duty to take action against those members of the gang who were known to them and who were committing crimes in their area of operation. According to the indisputable facts of the case, it was known to H [one of the police officers] that, amongst other things, N, who took part in the later break-in at the plaintiff’s, had committed a burglary with two other people. However in his examination as a witness in the main proceedings before the Schöffen Gericht (lay assessors court) because of this theft, he deliberately gave false evidence in order to help N, who was in fact acquitted, as were the other perpetrators, for lack of evidence. Shortly afterwards, K as well as H found out the names of all those involved in the burglary. Both of them however still failed to bring a criminal charge. H and K therefore had definite knowledge of the serious crimes committed by the gang and in particular of the co-perpetrators of the break-in later committed at the plaintiff’s. This left them no room for discretion when deciding whether measures were necessary against the perpetrators known to them. Criminal prosecution of law-breakers and preventing crimes came within the scope of the official tasks of the two officers as police officers. Non-intervention by them in the given situation could not be justified by any sort of objective or policing considerations. Remaining inactive was unambiguously outside the boundary of discretion of “harmfulness”. A situation of danger was present which made action by the police officers an unconditional duty.

The question was raised in the said decision of how the establishment of the boundaries of discretion of “harmfulness” or of “excess” is to be treated in the individual case. Was it a pure issue of law and to be undertaken by the court “in accordance with relevant considerations” [reference omitted]? Or was it a question here of a “pure issue of discretion” to be decided by the appropriate authority, which the judge cannot generally re-examine [reference omitted]? No final position needs to be taken here on this question. Even if the establishment of the boundaries of discretion is in principle regarded as a “pure issue of discretion” which cannot generally be re-examined judicially, the police officers involved were still under a duty to take action. This is because we have a case here in which even a decision based on discretion (which is not in principle subject to judicial re-examination) can still be subjected to such a re-examination. The officers failure to act was not based on a weighing up of the arguments for and against in accordance with objective considerations but was based exclusively on irrelevant and purely personal grounds. They therefore have acted with such a high degree of impropriety that their behaviour – and this needs no further explanation in the given circumstances – is irreconcilable with the requirements of proper police administration and does not satisfy the needs of proper administration from any possible point of view [references omitted].

2. The further question of whether the official duty violated by the police officers by failing to act against the gang also existed against the plaintiff as a “third party” in the sense of § 839 of the BGB, was likewise correctly answered in the affirmative by the appeal court.

According to the case law of the Reichsgericht [reference omitted], which the Senate followed in [reference omitted], the question of whether an official duty is owed by an official to a third party is to be adjudged taking into consideration the officer’s official area of activity and the type of work which he is carrying out. In this connection the main emphasis is on the purpose which the official duty is to serve. If this is imposed on the officer in the interests of individual persons, everyone whose interests are, according to the special nature of the official business, affected by it will be a third party. But if the purpose of the official duty is only the maintenance of public order or the interest which the state has in officials carrying out the responsibilities of their office properly, the official owes no duty to third parties, even if there is indirect intrusion into the interests of third parties by the exercise of this duty. The task of preventing crimes is not however owed by the police in the interest of the general public alone, but, as to crimes which also intrude directly into the protected legal sphere of the individual, to the endangered individuals as well. If the police do not properly fulfil this task, this not only violates a duty owed by the police to the general public but also a duty owed by it to the endangered individuals.

The appeal in law refers in this connection to the decision of the Reichsgericht in [reference omitted] in which the duty imposed on the state prosecutor by § 152 (2) of the Criminal Procedure Code to prosecute for crimes is described as a task serving exclusively the interests of the general public. It then takes the view that in this respect the task of the police could not be regarded in any different way. But it can be left open in this case whether and, if appropriate, how the area of responsibility of the state prosecutor and of the police are to be judged differently in relation to the prosecution of crimes. This is because the issue is not the duty of criminal prosecution incumbent on both authorities but the duty to prevent crimes which falls on the police as a task arising directly from their duty of protection from danger. For the state prosecutor a general direct responsibility to prevent crimes does not exist; at the most it only arises insofar as the purpose of prosecution for crime is to prevent further crime. In this respect therefore the reference to the decision of the Reichsgericht mentioned above misses the point.

The appeal in law further takes the view, having regard to [references omitted], that the general duty of protection by the police (and therefore also their duty to prevent crimes) is not a duty owed to third parties but only to the general public. This would be so at least as long as no concrete relationship to a definite third party has yet developed and the actual person harmed has not so far stood out from the mass of people who could be harmed. In the present case, no such actual relationship to a particular person harmed has yet been established. The possible crimes which lawbreakers known to police officers might commit could have been directed against simply any inhabitant of the area concerned and therefore against an entirely undetermined circle of people. The duty of the officers was only owed to the general public and not the plaintiff as a member of a general public which should be protected. That cannot however be agreed. A person who stands out from the mass of people at risk because he was specially at risk is not the only person to be regarded as a third party to whom the police owe a duty to prevent crimes, as was the case with the facts which formed the basis of the decision [reference omitted]. The circle of third parties should be drawn much more widely. Thus the Reichsgericht has, amongst other things, regarded the fulfilment of the general protective duty of care (subject to the prerequisite that exercise of public power is in question) as amongst the official duties which are owed by an official to every third party [reference omitted] and confirmed that the official duty of a teacher supervising a ball game is owed to anyone not participating who could come into the area of the game [reference omitted]. Accordingly, the duty of an official to prevent improper use of service vehicles has also been described by the Senate in the decision [reference omitted] as an official duty which exists against every highway user with whom the vehicle could come in contact while it is being improperly used. Therefore the duty of the police to prevent crimes must also be regarded as an official duty which is owed to anyone whose legal interests are endangered by a violation of this duty.

In the present case the following additional considerations also arise in this connection. All officials entrusted with the exercise of public power have an official duty to refrain from any misuse of their office. An official can make himself guilty of an improper exercise of office by omitting to act within the framework of the public power entrusted to him. That is always the case when the official duty unambiguously requires such action but the action does not take place because of completely irrelevant, purely personal and reprehensible reasons. It needs no further discussion that the police officers H and K have made themselves guilty in this respect of a misuse of office. However, the duty to refrain from any misuse of office is owed by the officials to anyone who could be harmed by the misuse [references omitted].

It cannot therefore be doubted that the official duty of the police officers to act as police against the gang was also owed to the plaintiff.