Express jurisdiction

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A Eilzuständigkeit (also: Eilkompetenz ) is a sub-category of administrative or judicial jurisdiction . Responsibilities regulate when a public decision-maker may act. So it is a question of formal law . A distinction must be made between this and the substantive and legal question of the conditions under which there is an imminent danger .

Urgent responsibilities can be found in general and special administrative law (e.g. in police law ) as well as in criminal procedure law . Urgent jurisdiction regulates the administrative or judicial competences if the (originally) appointed decision-maker does not act or cannot be reached in time in an urgent matter. These exceptional competencies can be found in both the factual and the local jurisdiction . So this is about legal issues from public law , not about the prosecution of private individuals.

Urgent jurisdiction in law enforcement

An example in the area of ​​criminal proceedings are the rules for imminent danger . These lead to the fact that, for example, instead of the originally responsible investigative judge ( judge's reservation ), the public prosecutor's office (e.g. Section 100e, Paragraphs 1 and 2 of the Code of Criminal Procedure (StPO) ) - or vice versa, the judge can act for the competent public prosecutor's office (e.g. Section 165 StPO). Further cases of possible urgent jurisdiction are the physical examination of the accused acc. § 81a Abs. 2 StPO, the investigation of other persons acc. § 81c Abs. 5 StPO and finally the order of the seizure acc. Section 98 (1) of the Code of Criminal Procedure.

Decision of the Federal Constitutional Court of June 16, 2015, 2 BvR 2718/10

In its decision of June 16, 2015, 2 BvR 2718/10 , the Federal Constitutional Court made very basic requirements on the urgent competence of the investigating authorities in the event of searches if the investigating judge is either not available in time or a search decision by the investigating judge cannot be obtained in good time . This case law can be summarized in the following guiding principles:

1. From Article 13 of the Basic Law there is an obligation of the state to ensure effective enforcement of the judge's reservation .

2. When the responsible investigating judge is brought before the investigating judge by submitting an application for the issuance of a search warrant and the possibility of preventive protection of fundamental rights by the judge, the urgent competence of the investigating authorities ends.

3. The urgent authority of the investigating authorities can only be re-established if, after the judge has been referred, actual circumstances arise or become known that do not result from the process of examination and decision on this application and thereby justify the risk of loss of evidence in a way that precludes the possibility of a timely judicial decision.

4. The urgent competence of the investigative authorities cannot be based on the structure of the internal judicial organization.

Urgent police jurisdiction

The police in the area of security , which are also Eilzuständigkeiten normalized in the police laws of the states. In urgent cases, administrative and police authorities may exceed their factual or local jurisdiction limits in order to avert a danger. This allows police officers who are on vacation in another federal state to declare themselves "urgently responsible" and, for example, to carry out arrests , which they are otherwise not allowed to do outside their area of ​​duty.

State police also have an assigned task and authority to regulate traffic in the event of measures in the area of road traffic that cannot be postponed ( Section 44 (2 ) StVO ).

An urgent police responsibility of the customs authority is not regulated nationwide. This means that customs officers without legal regulation can only use the right of public access, i. H. to detain someone who has been found engaged in a crime. Further measures, such as B. Arrest, seizure of drugs and stolen goods are not possible. Corresponding regulations have so far only existed in the police laws of Bavaria, Baden-Württemberg, Brandenburg, Lower Saxony (2019), NRW (2018), Hamburg (2019), Hesse, Saarland (2014), Saxony, Saxony-Anhalt, Schleswig-Holstein. Mecklenburg-Western Pomerania will be the 12th federal state in March 2020.

The following example of a preventive police operation :

An acutely suicidal person is encountered by a police patrol on a Sunday evening. The responsible health department cannot be reached. Thus, a forced admission to a psychiatric hospital is carried out by the police, which is also a deprivation of liberty. Obtaining a decision on the legality and continuation of the deprivation of liberty from a judge is not possible because the judge cannot be reached (the authorities will be informed of this afterwards).

International express jurisdiction

There are also international regulations on express jurisdiction. The Hague Convention on the Protection of Children (KSÜ) deserves special mention . Article 11, paragraph 1, provides that all contracting states have urgent jurisdiction to the extent that the country in which the person or property of the kidnapped child is located has urgent jurisdiction.

See also

literature

  • Udo Behrendes: From urgent responsibility to universal responsibility? The police responsibilities according to the preliminary draft (VE '86) to amend the model draft (ME '77) of a uniform police law of the federal and state governments. In: The police. Volume 79, 8, 1988, pp. 220-228.
  • Benjamin Rusteberg: Urgent police responsibility "from the desk" for assembly and event bans to ward off terrorist dangers. In: Saxon administrative sheets. Journal of Public Law and Public Administration. Volume 23, 11, 2015, pp. 261-265.
  • Holm Putzke : Comment on the decision: Urgent competence of the investigating authorities after referring to the investigating judge: BVerfG, decision of June 16, 2015 - 2 BvR 2718/10 et al. In: Journal for legal studies. Volume 8, 6, 2015, pp. 623–626 ( PDF; 50 KB )
  • Lutz Meyer-Goßner , Bertram Schmitt : Code of Criminal Procedure (StPO). Comment. 57th edition. Verlag CH Beck, Munich 2014, ISBN 978-3-406-66043-6 .

Individual evidence

  1. ↑ Meyer-Goßner / Schmitt, 58th edition 2015, Rn. 1 to § 100b StPO
  2. ↑ Meyer-Goßner / Schmitt, Rn. 1 to § 165 StPO
  3. ↑ Meyer-Goßner / Schmitt, para. 25 ff on § 81a StPO
  4. ↑ Meyer-Goßner / Schmitt, Rn. 28 to § 81c StPO
  5. ↑ Meyer-Goßner / Schmitt, para. 3 ff on § 98 StPO
  6. ↑ BVerfG of June 16, 2015, 2 BvR 2718/10, NJW 2015, 2787 with note by Folker Bittmann
  7. ↑ a b GDP: Urgent responsibility must be regulated nationwide, July 23, 2012
  8. ↑ More security through police powers for customs officers in the state of Brandenburg , June 15, 2012.
  9. ↑ Lower Saxony is the 10th federal state to introduce urgent responsibility for customs enforcement officers! Retrieved April 29, 2020 .
  10. ↑ Landtag passes law on urgent jurisdiction. Retrieved April 29, 2020 .
  11. ↑ Carsten Weerth: BDZ German Customs and Finance Union, Bremen Local Association: BDZ: Urgent police responsibility for customs officers in Hamburg has been in effect since December 24, 2019 (§ 30a HSOG). In: BDZ German Customs and Finance Union, Bremen branch. December 25, 2019, accessed April 29, 2020 .
  12. ↑ BDZ initiative successful: Urgent responsibility for customs now also in Saarland, November 28, 2014
  13. ↑ The legal basis for this is e.g. B. the Bay. Accommodation Act
  14. ↑ Section 4 g. Urgent jurisdiction (Art. 11)
  15. ↑ OLG Munich, decision v. 01/22/2014 - 12 UF 1821/14

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