Multiple defense

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Multiple defense is a term used in German criminal procedure law. It designates the defense of accused of the same offense or in the same proceedings by the same criminal defense lawyer.

Multiple defense is prohibited according to § 146 StPO.

Crime identity

According to Section 146 of the Code of Criminal Procedure, defense counsel may not simultaneously defend several persons accused of the same offense. “The same act” refers to the concept of the procedural act within the meaning of Section 264 of the Code of Criminal Procedure.

In any case, according to § 146 StPO, the so-called successive multiple defense, i.e. the defense of several of the same offense in successive proceedings, is permissible . This follows from the fact that Section 146 StPO only prohibits simultaneous defense. Even in the case of successive multiple defenses, however, “the same legal case” will generally exist, so that the defense attorney can make himself liable for betrayal of parties according to Section 356 of the Criminal Code or act contrary to professionalism according to Section 43a of the BRAO if he represents conflicting interests in a successive multiple defense .

Procedural identity

Likewise, § 146 StPO excludes the defense of several accused in the same proceedings, even if they are accused of different procedural acts. In this case, the inadmissibility of the defense can also occur when the proceedings have already progressed, for example by combining several proceedings. It is controversial whether this only applies if the proceedings are permanently linked so that they henceforth form one procedure, or whether a procedural identity is also present if two proceedings are only connected with one another in accordance with Section 237 of the Code of Criminal Procedure for the purpose of joint negotiation and decision.

consequences

If there is a case of inadmissible multiple defense, the court will reject the defense attorney in accordance with Section 146a of the Code of Criminal Procedure. There is no room for discretion in this respect. The rejection is made by decision, which can be challenged by both the person concerned and the defense counsel. The public prosecutor's office is entitled to the same legal remedy if its application to reject a defense counsel has been rejected.

Procedural acts carried out by the rejected defense counsel before the decision on his rejection has become final, remain in effect (Section 146a (2) of the Code of Criminal Procedure).