imminent danger

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Danger in default (GiV) (in Austria danger in default ) is a term from procedural law . It describes a situation in which damage would occur or evidence would be lost if another authority or person does not act directly in place of the competent authority or person.

There is also imminent danger . Linguistically, the term "but [is] imminent danger" in the form of to flesh, whereas "danger in delay" a faulty application of the concept in itself, since "Default" is the cause of danger and not their state. In legal Latin , periculum in mora stands for “ danger with delay” or “the danger lies in delay”.

Basics

Historical

The originally Latin expression periculum in mora ("danger in case of delay") is traced back to the Roman historian Titus Livius . In his Roman history he wrote about behavior in a battle: “ Postremo, cum iam plus in mora periculi quam in ordinibus conservandis praesidii esset, omnes passim in fugam effusi sunt ” (“At last, when there was already more danger of waiting longer As a security, if they remained in order, they all fled wildly on all sides ”).

With the formula Periculum in mora - dépêchez-vous! ("Danger if you hesitate! Hurry!") On September 18, 1862, Albrecht von Roon alerted the Prussian ambassador to France, Otto von Bismarck , to return to Berlin from Paris as quickly as possible in a telegram that has become famous . This followed immediately and became Prussian Prime Minister - the beginning of his career as a state leader.

Danger terms

  • Danger : A specific danger exists if the circumstances of the individual case give a sufficient probability that damage to public safety or order will occur in the foreseeable future.
  • Current danger: A danger in which the damaging event has already started or is imminent or is imminent with a probability bordering on certainty.
  • Significant danger: a danger that threatens one or more significant legal interests , such as life, health, freedom, essential assets or the very existence of the state .
  • Danger to life or limb: A danger that threatens to result in more than minor physical injury or even death.
  • Imminent danger: A situation in which damage would occur if another authority, person or individual does not act in place of the competent authority, person authorized to act or represent, or a majority of persons (e.g. both parents). Example: Emergency representation of the child by one parent ( Section 1629, Paragraph 1, Clause 4 BGB ) solely in the case of joint custody.

Example of use

A typical case of "imminent danger" is when police officers enter an apartment for prosecution out of urgency without a judicial order. The police perform several tasks: In addition to (preventive) averting danger, they also help the senior public prosecutor's office with (repressive) prosecution. Entering and searching an apartment can be done both to avert danger and to prosecute (so-called double-functional measure). In Germany, only a judge may order a house search for criminal prosecution (Section 105 (1) StPO; Article 13 (2 ) GG ). However, if police officers assume, for example, that a suspect is keeping incriminating evidence in his apartment (Section 102 StPO) and that he would destroy it until the police officers can get a judicial search warrant, they must act urgently. Because of the urgency of the search for the success of the investigation, the public prosecutor's office or - subordinately - the police may order the search instead of a judge (Section 105, Paragraph 1, Clause 2 StPO). Because the urgency of the matter changes the authority to issue a search order from one public body (the judge) to another (the public prosecutor or police), there is a case of "imminent danger".

Whether there was actually any imminent danger is subject to full judicial review. The decisive factor is whether the police officers could assume that, on the one hand, evidence could be found in the apartment and, on the other hand, that it was at risk without an immediate search. The courts also place particularly high demands on the assumption of imminent danger in house searches: as a rule, the police officers must have at least tried to obtain a search order from the public prosecutor or a judge before proceeding on their own. This is usually possible at least by telephone, as many courts and public prosecutors have set up emergency services that can be reached continuously. If, on the other hand, a delayed danger was improperly or arbitrarily assumed by the police officer, after weighing up the individual cases, a prohibition of the use of evidence may be considered. The evidence found during the illegal search may then no longer be used in criminal proceedings.

Even in the case of purely preventive police measures, the police laws of the federal states provide for a judge's reservation for entering apartments, for example. If z. For example, if a police officer perceives a gas smell from an apartment and therefore enters the apartment, he is responsible for this and acts on the basis of the presence of a “present danger” (cf., for example, Section 41 (1) No. 4 PolG NRW). The additional presence of "imminent danger" helps because of the particular urgency here beyond the judicial approval (cf., for example, § 42 para. 1 PolG NRW).

Germany

In the German system of procedural jurisdiction , it represents a sub- case of urgent jurisdiction . It occurs when waiting for the decision of the competent authority or the competent court is not possible or not possible in due time, given the urgency of the matter. GiV thus includes a prognosis decision in cases of urgency.

In the Basic Law is the notion of GiV as part of the inviolability of the home ( Art. 13 para. 2 GG) in connection with the arrangement of the search of apartments called.

In one of its main areas of application, criminal procedure law , GiV is an instrument for promptly investigating and taking measures (e.g. making arrests). Regulations that enable intervention in GiV can also be found in other areas of law, such as police law or tax law .

GiV in the area of ​​civil law

To secure the child welfare a is in the case of GiV power of representation for each (single) Parent (provided § 1629 1 sentence. 4 BGB at need due also to the non-custodial parent (-; so-called 'Notvertretung') § 1687 1 sentence. 5 BGB in connection with § 1687a BGB). The other parent must be notified immediately in any case.

GiV in the area of ​​criminal procedure law

In the case of GiV, certain measures can be ordered by the public prosecutor or their investigators without the generally prescribed judicial reservation . In some cases, the quality of an investigator is also required for the implementation of a measure.

GiV is given if obtaining a previous judicial decision would thwart or endanger the success of the investigation in whole or in part. Thus z. B. Orders for the apartment search by the above. Group of people also possible without a court order.

Regulations on GiV are standardized in the Code of Criminal Procedure ( StPO ).

GiV is u. a. relevant to

Example: Person A admits to dealing in drugs. A friend B (who has an apartment key for the apartment) notices this, but cannot be held. There is therefore a risk that the person friend will remove evidence from person A's home long before a search warrant is obtained. So there is an imminent danger here.

Since a ruling by the Second Senate of the Federal Constitutional Court on February 20, 2001, the term GiV has been interpreted very narrowly in the area of ​​home searches and has to withstand a case-by-case examination. The judicial order of a search should therefore be the rule, the non- judicial order the exception . GiV must be justified with facts relating to the individual case. Pure speculation, hypothetical considerations or case-independent assumptions based solely on everyday criminal experience are not sufficient for the prognosis of GiV.

According to this decision, courts and law enforcement authorities must, as far as possible, take actual and legal precautions so that the judge's jurisdiction provided for in the constitution is preserved in the majority of everyday cases (avoidance of erosion).

References and comments

  1. ↑ Vienna Nature Conservation Act as an example from 2014, accessed on June 22, 2018.
  2. ^ Titus, Ab Urbe Condita libri, Liber XXXVIII.
  3. ↑ See Dr. Boris Dunsch: Hazardous Latin, in: Die Zeit, 11/2004.
  4. ↑ BVerfGE 103, 142 ff. - House search

literature

  • Folker Bittmann: Imminent danger. Comment on the judgment of the BVerfG, wistra 2001, 137 ff. In: wistra . Journal for Commercial and Tax Criminal Law, 20th year, 2001, pp. 451–456.
  • Matthias Once: Danger of delay and availability of the investigating judge during searches and seizures . In: Neue Juristische Wochenschrift (NJW), 54th vol., H. 19, 2001, pp. 1393-1396.
  • Christoph Krehl: Imminent danger. Consequences from the judgment of the Federal Constitutional Court of February 20, 2001 . In: Juristische Rundschau (JR), year 2001, pp. 491–495.
  • Oliver Lepsius: The inviolability of the apartment in the case of imminent danger. The current decision: BVerfG, ruling v. February 20, 2001 - 2 BvR 1444/00 . In: Law. Legal training , Volume 24, 2002, pp. 259–266.
  • Christoph Möllers : Imminent danger. The inviolability of the home from the alleged constraints of law enforcement . In: Neue Juristische Wochenschrift (NJW), 54th vol., H. 19, 2001, p. 1397 f.
  • Ursula Nelles : Competencies and exceptional competencies in the criminal procedure code. On the organizational function of the term “imminent danger” in criminal proceedings . Duncker & Humblot, Berlin 1980.
  • Frank Zieschang : The concept of danger in law: uniformity or diversity? In: Goltdammer's Archive for Criminal Law (GA), Volume 153, 2006, pp. 1–10.