Die polizeiliche Gefährderansprache

Police use the Gefährderansprache as an informal means to deter potential offenders from breaking the law. Through either an individual meeting or personal letter, the police alert the potential offender that his or her past illegal actions have caused concern in relation to a specific future illegal act. The police suggest a course of conduct the individual should take and announce the formal police measures that will be initiated if the advice is not followed. The Gefährderansprache is often used by the police to deter persons from disturbing order at international summits, to discourage hooligans from fighting, and to encourage a change in behaviour from repeat juvenile delinquents and domestic violence offenders. The success of the Gefährderansprache depends upon whether or not the person concerned follows the advice given by police. Although the Gefährderansprache does not lead directly to legal consequences, it does cause indirect actual effects (Realakt). Accordingly, the lawfulness of Gefährderansprache depends upon whether or not these indirect actual effects infringe upon the fundamental rights of the person concerned. If the person concerned cannot reasonably reach a decision other than to follow the advice of the police, the Gefährderansprache interferes in the person's fundamental rights. Pursuant to the principle of »reservation of the law« (Vorbehalt des Gesetzes), every interference in fundamental rights must be based upon an enabling clause (Ermächtigungsgrundlage). However, the Federal Constitutional Court of Germany has limited the principle of reservation of the law for interferences in fundamental rights with only indirect actual effects. According to its jurisprudence with regard to state warnings, an enabling clause is not necessary if there has only been an indirect interference with a person's fundamental rights by state information policy. This decision has been rightly criticized. Fundamental rights protect the beneficiary regardless of the form of state interference. This is confirmed by the function of the Gefährderansprache, which, when successful, replaces classic formal police measures. This article argues that the police may only interfere in fundamental rights if there is a sufficient probability that the law will be broken. Because the Gefährderansprache is a relatively mild interference in the fundamental rights of the person concerned, there does not need to be a high probability of an illegal act. Thus, the police may use the Gefährderansprache at an early state when there is not yet a very high degree of probability of breaking the law.