Legal journal service

A legal journal service (also legal standby service, criminal defense standby service) enables reliable access to a well-founded criminal defense in the Principality of Liechtenstein outside of normal office hours, especially in the evening and on weekends.

For this purpose, the Liechtenstein Chamber of Lawyers (LIRAK) set up and operated its own hotline number, which the accused can request from the responsible pick funnel or the national police (there is also an information sheet with this number).

The services provided by the defense attorney are billed by him and include z. B. the concrete intervention of a defense attorney in the context of this legal journal service and the telephone consultation, application, the travel to and from the police station and other locations. If the advice and assistance of the Journal-Advocate in the context of legal aid , the costs incurred will be charged on the Bar Association of the State of Liechtenstein.

The legal journal service is set up about once or twice a month. Lawyers admitted and registered in Liechtenstein are not obliged to participate in the legal journal service. In 2013, only around 8% of the registered lawyers took part in the journal service. Currently, only lawyers licensed in Liechtenstein are authorized to provide legal journalism.

history

A delegation from the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited Liechtenstein from February 5 to 9, 2007 and, with regard to the applicable criminal procedure code, recommended, among other things, that the relevant legal provisions be amended to the effect that that the right of access to a lawyer is guaranteed to all detainees from the very beginning of their imprisonment.

According to Section 128a of the Code of Criminal Procedure (StPO), since 2007 every person arrested has to be informed upon arrest or immediately afterwards that they are entitled to notify defense counsel and that they have the right not to testify.

With some delay, a legal journal service was introduced on a trial basis in 2012. The Liechtenstein government provides a lump sum of CHF 20,000 (approx. 16,000 euros) per year for the journal service and pays it to the journal lawyers according to their working hours, whereby the daily lump sum is independent of the workload (Minimum duration 1 day).

Regulations for the legal journal service

On March 24, 2014, the plenary assembly of the Liechtenstein Bar Association passed a separate set of rules for legal journalists.

The lawyers who make themselves available for this journal service organize themselves in accordance with § 2 Paragraph 1 of these regulations. The hotline number is connected to the journal lawyer's phone (§ 2 Paragraph 2 Regulations).

Duration of the authorization within the framework of the journal service

The authorization of the journal attorney, which was granted in the context of the journal defense, is generally considered to be revoked upon admission to a prison or prison or upon release from custody.

Restriction of the right

According to Section 30 (3) of the Code of Criminal Procedure, the arrested accused is to be given the opportunity to contact a defense attorney and to authorize him. However, if the accused is in custody because of the risk of obscuration (Section 131 (2) No. 2) or the risk of execution (Section 131 (2) No. 3 (d)) and, due to special, serious circumstances, it is to be feared that contact with the Could endanger the purposes of detention, impair substantial evidence or endanger life and limb or other vital interests, the examining magistrate can, with a justified decision, order that the meeting with the defense counsel be in the presence of the examining magistrate or one of him appointed person and is monitored by them (Section 30 (3) StPO).

criticism

An equality of arms between the executive and the accused through the involvement of a criminal defense attorney as part of the legal journal service is not established. According to Section 147 (2) of the Code of Criminal Procedure , the accused has the right to call a defense attorney for his hearing. The defense attorney may not take part in the interrogation himself in any way, either verbally or non-verbally. Only after the interrogation has been completed may the defense lawyer direct additional questions to the accused. During the interrogation, the accused may not consult the defense attorney about answering individual questions. In practice this leads to B. on the situations

if the interrogation develops in the wrong direction (subject of evidence, facts, involvement, etc.), that the criminal defense attorney is not allowed to say this during the interrogation although he recognizes this and at the end of the interrogation parts of the interrogation are useless and must be repeated;

Likewise, defense lawyers advise their clients not to give any testimony at the first interrogation ( right to refuse to testify ) in order to know after this first interrogation what the matter itself is about (as a rule, the criminal defense attorney is not informed in advance by the executive branch).

and that the defense counsel cannot prevent illegal catch or suggestive questions from the interrogator, but can only object to them after the interrogation.

With the judgment of the European Court of Human Rights (ECHR) in the Soytemiz vs. Turkey (57837/09) of November 27, 2018, Section 147 (2) of the Liechtenstein Code of Criminal Procedure is to be regarded as incompatible with the European Convention on Human Rights. In this decision, the ECHR stated that the right to legal assistance includes, in particular, the presence of a lawyer and active advice during the entire hearing. According to the case law in the Ibrahim et al. a. vs. Although the United Kingdom could be justified in restricting the right to legal assistance during interrogations if there are compelling reasons, this must not impair the fairness of the proceedings as a whole, as Article 6 and 3 ECHR could otherwise be violated.

According to Section 147 (2) StPO, the executive can also completely refrain from calling in a defense attorney as part of the legal journal service, “if this appears necessary in order to avert a danger to the investigation or impairment of evidence. In this case, a sound or image recording (§ 50a) is to be made if possible. ”(However, see the contradiction from Art 6 Paragraph 1 in conjunction with Paragraph 3 lit c ECHR).

According to Section 30 (2) of the Code of Criminal Procedure, the accused or his defense counsel are generally entitled to inspect the results of the investigation and the main proceedings that are available to the public prosecutor and the court. But not in the results of the investigations by the state police! (Section 11 (5) StPO). Restrictions on access to files are largely inadmissible once pre-trial detention has been imposed (Section 30b StPO).

This inspection of files can, however, also be restricted to the legal journal service (e.g. § 30 StPO). Access to files can be restricted before the investigation process is completed. To this end, the examining magistrate can " exclude individual files from inspection and transcription until the indictment is communicated if the fear is justified that immediate knowledge of these files could make the investigation more difficult ."

Web links

Information sheet from the Bar Association on the legal journal service.

Individual evidence

^ In Germany: criminal defense emergency service , in Austria: legal journal service.
↑ This free hotline has been in operation since December 1, 2012 and can be reached daily from midnight to midnight. The use of the telephone must be permitted by the police.
↑ According to the discussion and report to the plenary meeting of lawyers on March 24, 2014.
↑ Report and application by the government to the Landtag of the Principality of Liechtenstein (BuA) of August 21, 2007, 2007/92, item 2 f.
↑ Inserted by LGBl. 2007 No. 292.
↑ He is also to be informed about the suspicion against him and the reason for his arrest as well as that he is entitled to inform a relative or another person of trust.
↑ Georg Gass in “The position of the defender in criminal proceedings”, diploma thesis, Graz 2010, p. 56.
↑ ECHR decision: SOYTEMİZ v. TURKEY .
↑ Quotation according to § 11 Abs. 5 StPO : "The state police only has to grant access to files by order of the court." This change was only inserted by LGBl. 2012 No. 26 and is possibly in contradiction to Art 6 Abs. 1 in conjunction with Abs. 3 lit c ECHR.

[1] In Germany: criminal defense emergency service , in Austria: legal journal service.

[2] This free hotline has been in operation since December 1, 2012 and can be reached daily from midnight to midnight. The use of the telephone must be permitted by the police.

[3] According to the discussion and report to the plenary meeting of lawyers on March 24, 2014.

[4] Report and application by the government to the Landtag of the Principality of Liechtenstein (BuA) of August 21, 2007, 2007/92, item 2 f.

[5] Inserted by LGBl. 2007 No. 292.

[6] He is also to be informed about the suspicion against him and the reason for his arrest as well as that he is entitled to inform a relative or another person of trust.

[7] Georg Gass in “The position of the defender in criminal proceedings”, diploma thesis, Graz 2010, p. 56.

[8] ECHR decision: SOYTEMİZ v. TURKEY .

[9] Quotation according to § 11 Abs. 5 StPO : "The state police only has to grant access to files by order of the court." This change was only inserted by LGBl. 2012 No. 26 and is possibly in contradiction to Art 6 Abs. 1 in conjunction with Abs. 3 lit c ECHR.