Danger area (police law)

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A danger area is named after the Hamburg police law an area in the public space , "due in the concrete situation findings it can be assumed that in this area offenses committed by considerable significance". In this area, the Hamburg police can carry out certain standard police measures without having to check in individual cases whether there is a risk to public safety and order .

Although the OVG Hamburg considered the basis for intervention in an obiter dictum to be unconstitutional, the Hamburg police continued to adhere to the measure. At the end of April 2016, the Hamburg Senate announced that the regulations would be abolished at the end of 2016 and replaced by “dangerous places” with stricter requirements for police checks.

Anyone in this area can be searched; Police officers can use it without any further requirements

The establishment of a danger area is a preventive measure against serious crime. For the measures described, the presence of a hazard is dispensed with within a hazard area. This is to be distinguished from criminal prosecution measures in which there is no danger but rather suspicion .

Similar regulations exist in other federal states.

Legal basis

The authorization basis for danger areas is § 4 paragraph 2 sentence 1 of the law on data processing by the police (PolDVG). The CDU-led citizenship and the Senate of Beust II with Interior Senator Udo Nagel and Justice Senator Roger Kusch introduced the regulation through the law to increase security and order of June 16, 2005:

The police may stop people in public space in a certain area for a short time, question them, determine their identity and inspect things they have carried with them, provided that, based on specific knowledge of the situation, it can be assumed that criminal offenses of considerable importance are being committed in this area and the preventive measure the criminal offenses is necessary.

According to its wording, the law does not provide for the establishment of danger areas by the police, but focuses on actually existing endangered areas. Against this background, the establishment of a danger area is to be understood more as a determination that the requirements of the regulation are present at a certain location from the perspective of the police.

Character of the measure

The danger area is set up by the police in the form of internal instructions. There is no general order because the police usually do not disclose the establishment of a danger area. A judicial order is not required. The measure does not have to be limited in time and can continue as long as it is justified by specific knowledge of the situation. The law establishes this requirement through the element of necessity .

Measures recorded

The police can stop people briefly in a danger area, even if there is no danger , question them , determine their identity and inspect things they have carried.

Inspection

In the danger area objects carried may in the absence of danger appearances are taken. This inspection is limited to the observation of the items carried. It does not include palpation (physical search) or the use of detectors or sniffer dogs. However, it is permissible, for example, to shine a flashlight into a dark backpack and reach into it to pull a cloth aside and see whether a dangerous object is hidden underneath.

Further measures

Further measures are possible on the basis of another general authorization basis under police law, provided that the preconditions for this are met. In any case, this means that there must be a danger to public safety and order. This includes, for example , a physical search , expulsion , a residence ban or police custody . However, these additional measures are not specific to a hazard area.

History of origin

Bill of the SPD parliamentary group

On October 27, 2004, the SPD parliamentary group in the Hamburg citizenship introduced the bill Safe in the Rule of Law - amendment of the Hamburg SOG and PolDVG , with which a whole series of hazard prevention regulations should be changed or supplemented. One of the key points of the amendment was "the clarification of the possibilities for suspicious-independent controls at certain locations". For example, the draft provided for the introduction of a regulation that should allow the police to establish the identity of a person “if they are in a location which, according to the location-based assessment of the situation by the police, is a focus of crime.”
The suspicion-independent controls should be exclusive restrict to the identification of persons and should supplement the existing legal bases, because these would have proven to be “not sufficiently practicable”. The draft law defined the “crime hotspot” as a place where the crime rate should clearly stand out from that of other places. The place should have a crime rate that is significantly above average, whereby it is precisely not offenses of significant importance, but rather low-threshold offenses that are a prerequisite. Overall, this instrument is "correct, necessary and sufficient."

Later the SPD parliamentary group specified and specified the decisive passage about the situation-dependent controls and presented a revised version that should allow the identity of a person to be established "if this person is in a place whose crime rate is clear from the location-based assessment of the situation by the police other places (crime hotspot). "

Bill of the CDU Senate

Two months later, on December 14, 2004, the CDU Senate under Ole von Beust submitted its own draft law to increase public safety in Hamburg , which also contained a number of changes to the existing hazard prevention laws . The situation-dependent controls were found in the text of the draft law, but the Senate did not name these instruments as a focus in view of the extensive changes and additions to the rules. They were more broadly defined than in the draft of the SPD parliamentary group, so, based on concrete knowledge of the situation, it should be possible to stop at short notice, questioning, establishing identity and inspecting the objects carried.

The Senate cited two main reasons for introducing situation-dependent controls: on the one hand, the control of traffic routes and public spaces in order to prevent dangers from nationally active groups of perpetrators and organized crime, which Hamburg as a traffic junction between north, east and Central Europe used; on the other hand, there are special developments in individual urban areas, for example series of burglaries or special forms of violent crime. The primary purpose of establishing the identity is to eliminate any danger posed by the controlled person and to induce people to refrain from certain activities by removing anonymity.

Internal committee consultations

The citizenry referred the two bills to the lead Interior Committee, which discussed the bills in joint meetings with the Legal Committee on February 18, February 24, March 30, April 5, April 19 and May 17, 2005.
In the course of these meetings, the Hamburg data protection officer Hartmut Lubomierski and the Hamburg public prosecutor's office were asked to comment. Neither institution raised any concerns about the situational control. A legal opinion of the Munich Police President Wilhelm Schmidbauer on the Senate's draft law, requested by the SPD parliamentary group, did not reveal any legal or constitutional concerns.

During the committee meetings, the Hamburg data protection officer criticized the term “situation knowledge” as too vague. In order to limit controls independent of suspicion to the necessary extent, the requirements for the knowledge of the situation and the relevant procedure would have to be specified by law. According to his understanding, citizens should be able to rely on the fact that no police measures would be taken against them if they did not give cause to do so. The knowledge of the situation would have to be documented and the necessity of the situation-dependent controls made verifiable.

The SPD parliamentarians agreed with this view and also criticized the term “situation knowledge”. The term had to be specified in order to make the process safer and more transparent for citizens. The Senate's draft was too broad for the SPD MPs. In addition to simply being questioned about identity, according to the Senate draft, it should also be possible to take the person to the police station if the person concerned does not have any identification documents with them or refuses to provide personal information.

The GAL members also agreed with the statements made by the Hamburg data protection officer. They criticized the fact that it was impossible for the individual to foresee how and when he would end up in such suspicious-free controls with not inconsiderable consequences. In addition, they criticized the fact that the investigation of professional secrets jeopardizes the protection between lawyer and mandate.

There was no recommendation by the Interior Committee to restrict or supplement the regulation of the situation-dependent controls.

Plenary session

The citizenship discussed the law on June 8, 2005 and passed it with a majority of CDU MPs in first and second reading with 60:52 votes.

The CDU MP at the time, Christoph Ahlhaus, and the SPD MP Andreas Dressel , did not address the situation-dependent controls in their respective speeches.

Antje Möller from the GAL , on the other hand, made a decided statement: You cannot rely on the police to weigh up legal interests within the framework of broad laws, this is the task of the legislature. This law opens the door to political arbitrariness. According to this regulation, everyone is initially suspect. Most of the data that the police collect concerns completely bystanders. Contrary to technical and factual aspects, the Senate wanted the toughest law in the republic.

The Senate, represented by the then Interior Senator Udo Nagel , also dealt specifically with the situation-dependent controls. He first pointed out that the expert hearings at the meetings of the Interior Committee had confirmed that the law met all requirements. The point is not that the police will be able to stop every citizen at any location in the future, but that this is only possible in certain police situations such as series of burglaries, clusters of violent crimes or disputes among youth groups.

In the entire legislative process there is only talk of "suspicion-independent" or "situation-dependent controls". The term "danger area" does not exist.

Planned change in law in 2016: "Dangerous places"

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In the coalition agreement of the red-green Senate Scholz II , the examination of "the need for adjustment with regard to the legal basis from Section 4 (2) PolDVG" was recorded. At the end of April 2016, Interior Senator Andy Grote and Justice Senator Till Steffen presented a planned change in the law. The establishment of danger areas should no longer be possible from 2017. Instead, the police should be able to define “dangerous places” and carry out certain police measures there. This includes the identification of the person and the examination of items carried. An extension of the previous competencies lies in the permission to examine the contents of bags as well, if “actual indications make this necessary”. Nationwide identity checks should no longer be possible. At the same time, the gun ban zones on the Reeperbahn and Hansaplatz , which should expire in June 2016, are to be extended by four years until 2020.

Application in practice

Hazardous areas as special police zones have been set up in Hamburg since 1995, and they are justified by the police's knowledge of the situation. By 2014, this had been the case 51 times in different parts of the city and with varying durations. The practice is assessed differently and discussed controversially, particularly due to the designation of the danger area St. Pauli / Sternschanze / Altona in January 2014.

Three danger areas - one in St. Georg , two in St. Pauli - exist permanently, with the areas east of the main train station already established in 1995 and the area around the Reeperbahn in 2001 based on findings on drug-related crime under the heading of dangerous locations. The third, also in the area around the Reeperbahn, but not congruent with the older one, has existed under the name St. Pauli (entertainment district) since July 1, 2005 and is justified with knowledge of the situation regarding violent crimes . In terms of area, it extends to the Holstenstrasse station in Altona.

When identifying danger areas, certain target groups are defined that can be monitored depending on the situation.

Danger areas

The former and still existing danger areas are listed below. The specific situation information is given in brackets.

1995

1997

  • Sternschanze from July 14, 1997 to February 24, 2009 (drug-related crime)

2001

2002

  • Altona / Ottensen from February 18, 2002 to June 11, 2008 (drug-related crime)

2004

  • Southern Central Station from April 21, 2004 to September 19, 2006 (drug crime)
  • Jungfernstieg / Rathausmarkt from April 21, 2004 to September 19, 2006 (drug-related crime)
  • Veddel S-Bahn station from May 25, 2004 to December 22, 2005 (drug-related crime)
  • Stadtpark from May 25, 2004 to November 18, 2005 (drug-related crime)
  • Lübecker Strasse from August 16, 2004 to September 13, 2006 (drug-related crime)
  • Harburg Town Hall from August 16, 2004 to April 10, 2008 (drug crime)
  • Seevepassage / Moorstraße from August 16, 2004 to April 10, 2008 (drug-related crime)

2005

  • Public transport S21 / S31 between Hauptbahnhof and Elbgaustraße from May 25, 2005 to April 2, 2007 (drug-related crime)
  • St. Pauli since July 1, 2005 (entertainment district)
  • Jenfeld / Hohenhorst / Rahlstedt from August 5, 2005 to February 14, 2007 (thefts on and from vehicles )
  • Othmarschen / Ottensen / southern Bahrenfeld from August 9, 2005 to December 28, 2005 (thefts on and from vehicles)
  • Nobistor / Königstraße / Holstenstraße from September 15, 2005 to November 7, 2005 ( bodily harm )

2006

2007

  • Volksdorf underground station from March 5, 2007 to March 6, 2007 ( violent crime in connection with discotheque events )
  • Volksdorf underground station from March 12, 2007 to March 13, 2007 (violent crime in connection with discotheque events)
  • Volksdorf underground station from May 14, 2007 to May 15, 2007 (violent crime in connection with discotheque events)
  • Inner city from May 25, 2007 to June 10, 2007 (ASEM / G8 summit )
  • Schanzenviertel from May 25, 2007 to June 10, 2007 (ASEM / G8 summit)
  • St. Pauli stadium area from May 25, 2007 to May 26, 2007 (ASEM / G8 summit)
  • Schanzenviertel / water tower from June 11, 2007 to July 13, 2007 (general crime / opening of the Mövenpick Hotel)
  • Volksdorf underground station from July 16, 2007 to July 17, 2007 (violent crime in connection with discotheque events)
  • Volksdorf underground station from July 18, 2007 to July 19, 2007 (violent crime in connection with discotheque events)
  • Volksdorf underground station from July 23, 2007 to July 24, 2007 (violent crime in connection with discotheque events)
  • Volksdorf underground station from July 25, 2007 to July 26, 2007 (violent crime in connection with discotheque events)
  • Volksdorf underground station from July 30, 2007 to July 31, 2007 (violent crime in connection with discotheque events)
  • Volksdorf underground station from August 6, 2007 to August 7, 2007 (violent crime in connection with discotheque events)
  • Volksdorf underground station from August 13, 2007 to August 14, 2007 (violent crime in connection with discotheque events)
  • Volksdorf underground station from August 20, 2007 to August 21, 2007 (violent crime in connection with discotheque events)
  • Volksdorf underground station from October 22, 2007 to October 23, 2007 (violent crime in connection with discotheque events)
  • Downtown from December 15, 2007 to December 16, 2007 (gathering with a prognostically violent course)
  • Surroundings of the Volkspark Stadium from December 20, 2007 to December 21, 2007 ( UEFA Cup game)

2008

2009

  • in the Schanzenviertel from February 25, 2009 to June 11, 2009 (drug crime)
  • in St. Pauli North from February 25, 2009 to June 11, 2009 (drug-related crime)
  • Lurup from April 6, 2009 to June 9, 2009 (property damage caused by fire on motor vehicles)
  • Osdorf from April 6, 2009 to June 9, 2009 (property damage caused by fire on motor vehicles)

2012

  • Surrounding area Millerntor Stadium on April 22nd, 2012 from 9 a.m. to 8 p.m. (soccer game 2. Bundesliga FC St. Pauli against Hansa Rostock )
  • Sternschanze / St. Pauli from August 25, 2012, 11 p.m. to August 26, 2012, 5 a.m. ( Schanzenfest )

2013

2014

Legality of the scheme

In 2011, a person affected, whose identity was determined in a danger area and whose bag was inspected, sued for violating the constitutionally guaranteed right to informational self-determination against the legal basis. The Hamburg Administrative Court thereupon ruled in its judgment of October 2, 2012 that the provision was “a formal and material constitutional law”. The court justified its judgment with, among other things:

“The goal of increasing public security through the preventive fight against major crimes is legitimate. The means of preventing potential interferers from committing criminal offenses by breaking them out of their anonymity, as well as recognizing a possible danger by comparing data and inspecting objects and, if necessary, initiate follow-up measures, is also legitimate. […] In the view of the Chamber, the law also creates a fair balance between the conflicting interests - the right to informational self-determination on the one hand and protection against criminal offenses of considerable importance on the other. "

In April 2014, Hamburg's data protection officer, Johannes Caspar , issued a “data protection assessment” of the hazard area identified in Altona in January 2014. This brief report examines the police regulations for their conformity with fundamental rights and constitutional principles. It raised concerns about the constitutionality of the reservation of the law , the certainty and proportionality of the rule. In particular, the size of the danger area and the limited knowledge of the police could not justify the interventions in the informational self-determination of a large number of people. In addition, the unreasonable storage of the data of the controlled persons for a period of three months is disproportionate.

In a judgment of May 13, 2015, the Hamburg Higher Administrative Court ruled on the appeal against the judgment of the Hamburg Administrative Court of October 2, 2012. It confirmed the decision insofar as the ban on staying and the plaintiff's detention were unlawful. In addition, the identification and control of the plaintiff's backpack were also illegal. The regulation of § 4 Abs. 2 PolDVG is unconstitutional: In the press release of the court it is stated: “[The regulation] violates the rule of certainty and the principle of proportionality. On the one hand, it does not specify the requirements for the designation of a danger area clearly enough. Rather, it is largely left to the police to decide whether and for how long a danger area can be identified and people can be checked there regardless of suspicion. On the other hand, the law allows intervention measures of considerable weight to ward off merely abstract dangers and against people, without the latter having to have given a specific reason for a police measure directed against them beforehand. The associated burden is not appropriate. ”The judgment is final.

Similar regulations in other federal states

In other federal states there is a similar police practice, which however does not refer to "areas" in public space, but to special "places" where criminal offenses are to be committed, as in Hamburg also in § 4 para. 1 No. 2 lit. a) PolDVG is regulated. The Hamburg Senate describes the difference between the danger zone regulation and this regulation as follows: "The difference to the regulation in paragraph 1 number 2 a) consists on the one hand in the restriction to public space, on the other hand in the renunciation of the close local reference."

Peter Ullrich and Marco Tullney define what these regulations have in common as follows: "In essence, this legal construction authorizes the determination of identity without suspicion or cause in certain rooms that are associated with criminal offenses or are subject to a special control interest for other reasons."

Web links

Individual evidence

  1. ↑ taz.de
  2. ↑ OVG Hamburg, judgment of July 13, 2015, Az. 4 Bf. 226/12. (PDF)
  3. ↑ Abendblatt.de
  4. ↑ a b c "Dangerous places" replace danger areas. In: ndr.de. April 27, 2016, accessed May 6, 2016 .
  5. ↑ Christian Ernst: "'Stop-and-frisk' in the Hamburger Schanze or the difference between icebergs and laws", JuWissBlog, August 15, 2013
  6. ↑ Christian Rath: "Police law and danger areas: Everyone can be searched", taz.de, January 5, 2014
  7. ↑ Hamburg legal notes: “VG Hamburg: Suspicion-independent identity control and search in so-called danger areas; Prohibition of residence and detention ” ( memento of the original from January 6, 2014 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice.  @1@ 2Template: Webachiv / IABot / www.jura.uni-hamburg.de
  8. ↑ Kai von Appen: "Controls: Doubts about the Police Practice", taz.de, November 1, 2012
  9. ↑ Citizenship of the Free and Hanseatic City of Hamburg , printed matter 18/1110, application re. Safe in the rule of law - amendment of the Hamburg SOG and PolDVG of October 27, 2004
  10. ^ Citizenship of the Free and Hanseatic City of Hamburg , printed matter 18/2379, proposal for a draft law of June 7, 2005
  11. ^ Citizenship of the Free and Hanseatic City of Hamburg , printed matter 18/1487, draft of a law to increase public security of December 14, 2004
  12. ↑ Citizenship of the Free and Hanseatic City of Hamburg , printed matter 18/2288, report of the Interior Committee together with the legal committee that asked for an opinion on printed matter 18/1110 and 18/1487 of June 2, 2005
  13. ↑ Citizenship of the Free and Hanseatic City of Hamburg , plenary minutes 18/33 of June 8, 2005
  14. ↑ Together we create the modern Hamburg, coalition agreement on cooperation in the 21st legislative period of the Hamburg citizenship between the SPD, regional organization Hamburg and Bündnis 90 / Die Grünen, regional association Hamburg. (PDF; 761 kB) (No longer available online.) April 15, 2015, archived from the original on March 22, 2016 ; accessed on March 16, 2016 . Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / gruenehh-107d.kxcdn.com
  15. ↑ Sven-Michael Veit: Raider becomes Twix - a little less general suspicion. In: taz.de. April 28, 2016, Retrieved May 6, 2016 .
  16. ↑ Danger areas in Hamburg, on: www.grundrechte-kampagne.de
  17. ↑ see Citizenship Document 20/10437, answer of the Senate to a small question of January 14, 2014
  18. ↑ Jusos: More security through danger areas . In: Bergedorfer Zeitung , May 18, 2010
  19. ↑ Citizenship of the Free and Hanseatic City of Hamburg, printed matter 19/4214 of October 9, 2009.  ( Page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. Law magazine@1@ 2Template: Dead Link / www.juramagazin.de  
  20. ↑ St. Georg and St. Pauli: There are still danger areas here. In: Hamburger Morgenpost , January 17, 2014, interactive map; accessed on January 22, 2014
  21. ↑ Citizenship of the Free and Hanseatic City of Hamburg, printed matter 19/6229 from May 25, 2010  ( page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. (PDF)@1@ 2Template: Toter Link / www.buergerschaft-hh.de  
  22. ↑ Openjur.de judgment of the Hamburg Administrative Court of October 2, 2012, 5 K 1236/11
  23. ↑ The Hamburg Commissioner for Data Protection and Freedom of Information: Data protection assessment of the police danger area in the Altona district from January 4-13, 2014 . ( Memento of the original from October 31, 2014 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. (PDF) April 2, 2014. @1@ 2Template: Webachiv / IABot / www.datenschutz-hamburg.de
  24. ↑ Hamburg danger areas unconstitutional. In: ndr.de. Archived from the original on May 13, 2015 ; accessed on May 13, 2015 .
  25. ↑ Higher Administrative Court considers danger areas to be unconstitutional (press release of the Hamburg Higher Administrative Court). (No longer available online.) In: hamburg.de. Archived from the original on May 18, 2015 ; accessed on May 13, 2015 . Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / justiz.hamburg.de
  26. ^ Citizenship of the Free and Hanseatic City of Hamburg: Printed matter 18/1487, Senate draft of December 14, 2004 .
  27. ↑ Peter Ullrich, Marco Tullney: The construction of 'dangerous places'. A problematization with examples from Berlin and Leipzig . socialraum.de.