The term danger in delay has its origins in Roman law. The Latin expression risk in delaywhich means “danger of delay,” succinctly describes those situations in which immediate action is necessary to avert imminent damage. Over the centuries, this concept found its way into numerous areas of law and continues to shape German procedural and police law to this day. Whether in law enforcement or averting danger: imminent danger allows the authorities to take measures without a court order if the urgency of the situation requires it. But what conditions must be met to justify this exception? This article highlights the legal basis, practical examples and the far-reaching consequences that come with the assumption of imminent danger.
I. What does imminent danger mean?
The term “imminent danger” has its legal basis in both the Basic Law and numerous procedural laws.
Imminent danger Definition: Imminent danger exists if imminent damage cannot be averted or evidence cannot be secured due to the delay in an official decision. This means that the normally required order from a judge or relevant authority cannot be obtained due to the urgency of the situation. The authorities are obliged to justify the dangerous situation precisely and comprehensibly, since the assumption of danger is subject to judicial review in the event of delay.
II. Danger of delay in criminal proceedings
1. Apartment search as a classic example of imminent danger
A particularly memorable example is the apartment search. According to Section 105 Paragraph 1 Sentence 1 StPO, an apartment search may generally only be carried out on the order of a judge. However, the court order can be circumvented if there is imminent danger. In this case, the public prosecutor’s office or, subordinately, the police as investigators of the public prosecutor’s office may order the search.
2. Requirements for the acceptance of imminent danger
In order for a measure to be carried out without a court order due to imminent danger, strict requirements must be met. First, the urgency of the measure must be comprehensively documented. The investigating authorities are obliged to record in detail all the circumstances that give rise to the danger in order to enable a later judicial review of the measure. This serves to ensure that imminent danger is not assumed arbitrarily, but is only used in real emergencies.
Furthermore, there is only danger of imminent delay if the responsible judge cannot be reached in time or if even an attempt to contact him would increase the risk of loss of evidence or other impairments to the success of the investigation. The principle of proportionality plays a central role here. A measure may only be ordered if it is proportionate to the impending danger and is necessary to avert the impending damage.
3. Danger of delay in taking blood
Another striking example is the case of blood sampling to determine the blood alcohol concentration when drunk driving is suspected. According to Section 81a of the Code of Criminal Procedure, a blood sample that constitutes physical intervention generally requires a court order. This ensures that the interference with the physical integrity of the accused is only carried out under judicial supervision. However, if there is imminent danger, the public prosecutor’s office or the police can order the blood sample to be taken even without judicial approval, for example if there is suspicion of a traffic offense such as drunk driving (§ 316 StGB) and a delay in the measure could lead to a lower blood alcohol content is distorted by the breakdown of alcohol in the body.
III. Consequences of unjustified assumption of imminent danger
1. The legal consequence of the ban on exploitation if the judge’s reservation is disregarded
2. Negligent or erroneous acceptance of imminent danger
A mere negligent or erroneous assumption of imminent danger does not necessarily lead to a ban on exploitation. The case law draws this conclusion here Principle of “hypothetical lawful substitute intervention” amazed (cf. BGH, judgment of April 18, 2007 – 5 StR 546/06). This principle states that no ban on exploitation applies if the measure would have been lawful even if it had been properly ordered by a court. In concrete terms, this means: If the responsible judge had been available in the situation in question and had approved the measure based on the information available to him, the violation of the judge’s reservation will be subsequently remedied.
However, such a hypothetical lawful substitute intervention presupposes that the formal and material requirements for the measure actually existed. For example, in the case of an apartment search, there would have to be a strong suspicion of a crime and the measure would have to be proportionate in order to be considered lawful. If these requirements are met, it is irrelevant whether the measure was carried out incorrectly without a court order.
3. Deliberate or arbitrary circumvention of the judge’s reservation
The situation is different if the judge’s reservation has been deliberately or arbitrarily circumvented. This is the case if the investigating authorities deliberately refrain from contacting a judge, even though this would have been possible and reasonable. Such behavior represents a serious violation of the constitutional principle that profound interference with fundamental rights must be subject to judicial control (Article 13 Paragraph 2 GG, Sections 105, 98 StPO).
In these cases, case law assumes a gross disregard of the judge’s reservation, which usually leads to a ban on the use of evidence. The Federal Court of Justice (BGH) and the Federal Constitutional Court (BVerfG) have repeatedly emphasized that such a deliberate circumvention of the judge’s reservation cannot be justified by the hypothetical lawful substitute intervention. In practice, this can mean that evidence obtained through an unlawful search may no longer be used.
4. Differentiated assessment by case law
The question of whether a ban on exploitation applies is always decided by the courts on a case-by-case basis. Several factors play a role:
- Severity of the violation: Negligent or intentional behavior by the investigating authorities leads to different legal consequences.
- Hypothetical legality: If the measure would have been carried out even with a proper court order, a ban on the use of evidence may no longer apply.
- Protection of the judge’s reservation: The more serious the violation of the judge’s reservation, the more likely a ban on exploitation is.
IV. Danger of delay in police law
In police law, too, the danger of delay is a central exception to the otherwise applicable obligation to issue an order by a judge. According to the police laws of the states, such as Police Act of North Rhine-Westphalia (PolG NRW)certain police measures that deeply encroach on the fundamental rights of citizens may, in principle, only be carried out upon a court order.
V. Danger of delay in civil law
There are also regulations in civil law that take this concept of danger into account. In the context of parental custody, the Civil Code (BGB) stipulates that one parent may alone make decisions for the child if there is imminent danger (Section 1629 Paragraph 1 Sentence 4 BGB). This applies, for example, if the child urgently needs medical attention and the other parent cannot be reached in time.
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