HUMAN RIGHTS AS TO THE RIGHT OF DETERRENCE OF DANGERS AS EXPRESSED IN THE DRAFT OF AN UNIFORM POLICE LAW

• NCJ Number: 52918
• Journal: Schriftenreihe der Polizei-Fuehrungsakademie Volume: 5 Issue: 2 Dated: (1978) Pages: 111-123
• Author(s): W MARTENS
• Date Published: 1978
• Length: 12 pages
• Corporate Author: Walter Rau Verlag
• Publication Format: Article
• Language: German
• Country: West Germany (Former)

Annotation

THE POTENTIAL EFFECTS OF THE DEFENSE-AGAINST-DANGER PROVISION CONTAINED IN THE DRAFT OF A UNIFORM WEST GERMAN POLICE LAW ON BASIC HUMAN RIGHTS ARE DEFINED.

Abstract

AS REQUIRED BY THE CONSTITUTION, THE PROPOSED LAW CITES THE SPECIFIC CONSTITUTIONAL RIGHTS ON WHICH LIMITATIONS ARE TO BE IMPOSED IN EXCEPTIONAL SITUATIONS. THE GENERAL AUTHORIZATION CLAUSE CAN BE INVOKED TO LIMIT BASIC RIGHTS IF A CONCRETE DANGER TO PUBLIC SECURITY EXISTS, WHICH IS JUSTIFIED UNDER THE CONSTITUTIONAL PROVISION CALLING FOR PROTECTION OF STATE ORDER AND SECURITY; THE EFFECTS OF THIS CLAUSE ARE INCREASINGLY AFFECTED BY THE GROWING SIGNIFICANCE OF POLICE PROTECTION FOR INDIVIDUAL RIGHTS AND ESPECIALLY BY THE SOMETIMES QUESTIONABLE JUSTIFICATION OF INTERFERENCE WITH BASIC RIGHTS BECAUSE PUBLIC ORDER IS IN SOME WAY ENDANGERED. ALL STANDARD MEASURES FOR SPECIAL AUTHORIZATION IN THE DRAFT ENTAIL INTERFERENCE WITH BASIC RIGHTS, BUT THE REQUIREMENTS FOR INTERFERENCE ARE UNCLEAR. CONSIDERATIONS FOR THE APPLICATION OF SUCH MEASURES ARE THE COMPREHENSIVE OBLIGATION OF THE STATE TO PROTECT THE CITIZENRY, THE QUESTION OF WHETHER JUSTIFICATIONS UNDER CRIMINAL LAW CAN REALLY BE CONSIDERED AUTHORIZATION IN THE CONSTITUTIONAL SENSE OF LEGAL RESTRICTIONS ON BASIC RIGHTS, AND THE RANGE OF RESPONSIBILITIES CLEARLY DEFINED FOR PARTICULAR AUTHORITIES. LIMITATIONS CAN BE PLACED EVEN ON CONSTITUTIONALLY DETERMINED BASIC RIGHTS WITHOUT RESTRICTIONS UNDER THE PRINCIPLE OF CONSTITUTIONAL CONSISTENCY WHICH IS DESIGNED TO AVOID CONTRADICTIONS BETWEEN CONSTITUTIONAL NORMS. EXCEPTIONS TO RIGHTS WITHOUT RESTRICTIONS SUCH AS THE 1975 EXTREMIST DECISION HOLDING THAT THE BASIC RIGHTS CONTAIN INHERENT RESTRICTIONS TO PROTECT THE COMMON GOOD ARE DISCOURAGED. THE GENERAL POLICE AUTHORIZATION FOUND IN THE DRAFT CAN ONLY BE EMPLOYED TO LIMIT BASIC RIGHTS WITHOUT RESTRICTIONS IF POLICE INTERVENTION IS INTENDED TO PROTECT A HIGHER ORDER OF CONSTITUTIONALLY DEFINED RIGHTS. --IN GERMAN. (KMD)