Public defender

from Wikipedia, the free encyclopedia

As a public defender is called in German criminal one by the court the accused Deputy defenders . The opposite is the defense attorney . In the Swiss and Austrian criminal law, there is a similar legal institution with the official defense or the official defender .

Compulsory defense

In cases of so-called necessary defense, the accused must be appointed ex officio if the accused does not yet have a defense attorney chosen by him ( Sections 140 et seq. StPO ). Section 144 of the Code of Criminal Procedure permits the appointment of up to two additional public defenders (so-called security defenders ).

The public defender is paid by the state treasury and receives reduced fees. Public defenders can agree on additional remuneration with the client; However, if this exceeds the public defender's fees, which are also to be paid by the state treasury, it must be taken into account. In the event of a conviction, the defendant is usually charged the costs of the proceedings; the state treasury then reclaims the paid public defender's fees from the convicted person. At the request of the public defender, the court can also determine that the defendant is solvent; he then owes the public defender the (slightly higher) statutory fees of a public defender. However, due to the convict's insolvency, these fees are usually not paid.

In contrast to the state-appointed public defender, there is the election defender, whom the defendant mandates himself. Typically, in the case of a necessary defense, the defendant is informed with the dispatch of the indictment that he should nominate a defense attorney of his choice and that otherwise a public defender will be appointed by the court. The optional defense attorney who may have been mandated by the defendant has the option of applying for assignment to the public defender, in which case he must resign from his electoral mandate. Ultimately, the defendant can indirectly determine his public defender himself, provided that the desired defense attorney is also willing to take on the mandate and act as a public defender.

Defense necessary

A public defender is only appointed in cases of so-called necessary defense . Necessary defense describes a procedural situation in which the legislature assumes that the accused cannot defend himself. If there is a case of necessary defense , a public defender must be appointed if the accused does not have a defense attorney. This applies even if the accused wants to defend himself (so-called "compulsory defender").

For compulsory defense it is irrelevant whether the accused can pay a defense attorney or not. In contrast to legal aid in civil proceedings or in Austrian or Swiss criminal procedural law, there is no option in German criminal proceedings to assign a public defender because the accused cannot afford a defense lawyer.

According to § 140 StPO, a case of necessary defense is given in the following constellations:

  • Main hearing before the regional court or higher regional court
The participation of a defense counsel is always necessary if the main hearing takes place at first instance before the regional court or higher regional court (Section 140 (1) No. 1 StPO).
This already covers all matters that concern the security of the state, because here according to § 120 GVG the indictment to the higher regional court is to be made, then all capital crimes in which the regional court is competent as jury court .
Furthermore, the jurisdiction of the regional court at first instance includes cases in which a prison sentence of more than four years is to be expected or in which the scope of the proceedings requires an indictment to be brought before the regional court.
The cases of serious and very serious crime therefore always belong to the cases of necessary defense due to this provision.
  • Suspected crime
According to Section 140, Paragraph 1, No. 2 of the Code of Criminal Procedure, the assistance of a defense counsel is always required if the accused is charged with a crime .
The term crime refers to the definition in Section 12, Paragraph 1 of the Criminal Code , according to which those unlawful acts that are threatened with imprisonment of at least one year constitute “crimes”, in contrast to the offenses that are at least less imprisonment or a fine is threatened (Section 12 (2) StGB).
  • Impending professional ban
According to Section 140 (1) No. 3 of the Code of Criminal Procedure, there is still a case of necessary defense if the proceedings can lead to a professional ban . The conditions under which this is given are regulated in §§ 70 ff. StGB.
  • Enforcement of pre-trial detention
According to Section 140, Paragraph 1, No. 4 of the Code of Criminal Procedure, there is a case of necessary defense if remand detention or temporary placement in a psychiatric hospital or a rehab facility is carried out against an accused. According to Section 141 (3) of the Code of Criminal Procedure, a public defender must be appointed immediately at the start of pre-trial detention ("after the start of enforcement").
“Immediately” does not mean “immediately” or “together with the pre-trial detention order to be executed”, but, as in other legal transactions, only without culpable hesitation . This means that one can and must wait before appointing a defense attorney if the accused declares that he needs a period of reflection before he can appoint a defense attorney he trusts.
  • Prolonged imprisonment
According to § 140 Abs. 1 Nr. 5 StPO there is also a case of necessary defense if the accused had to undergo custodial treatment for at least three months due to a judicial order or approval. Here, not only pre-trial detention is meant as deprivation of liberty (which is the rule for assignment according to Section 140, Paragraph 1, No. 5 of the Code of Criminal Procedure), but also extradition detention, criminal detention and other - even unlawful - detention for three months.
  • Accommodation for the preparation of an expert opinion
The participation of a defense attorney is also necessary according to § 140 Abs. 1 Nr. 6 StPO if the accused is to be accommodated for the purpose of preparing an expert opinion on his psychological condition.
  • Backup procedure
The person against whom security proceedings are carried out also requires a defense attorney (Section 140 (1) No. 7 StPO). A security procedure is carried out if the accused is said to have been incapable of guilt in the sense of Section 20 of the Criminal Code when committing the act , but an isolated measure of reform and security must be imposed because the perpetrator is dangerous for the general public due to his condition.
  • Defender exclusion
Under certain circumstances, a defense lawyer can be excluded from participating in the main hearing. For this purpose, Section 140, Paragraph 1, No. 8 of the Code of Criminal Procedure stipulates that a case of the necessary defense then occurs, so that if no other defense counsel appears, the defendant must be appointed a public defender.
  • Legal representation of the joint plaintiff
Since September 1, 2013 according to § 140 para. 1 no. 9 Code of Criminal Procedure that a defender is also necessary if the plaintiffs of the co-plaintiff approved procedure, a lawyer was buried assigns. Previously, this provision was only included as an optional provision in paragraph 2.
  • Other cases of defense necessary
In addition to the cases of Section 140, Paragraph 1 of the Code of Criminal Procedure, in which the necessity of a defense is ordered solely on the basis of a certain procedural issue, a necessary defense according to Section 140, Paragraph 2 of the Code of Criminal Procedure also exists if “because of the gravity of the offense or because of the difficulty the factual or legal situation requires the assistance of a defense counsel, or if it is evident that the accused cannot defend himself ”.
The term "seriousness of the act" means the expected sanction. When the seriousness of the offense requires the participation of a defense lawyer is assessed differently from region to region, but there should be consensus that a defense lawyer should be appointed if a prison sentence of one year is to be expected. When predicting the expectation of a sentence, suspended sentences are also to be taken into account, which may be revoked in the event of a new conviction. The judge is responsible for the order.

Time of assignment of the public defender

According to Section 141 (1) and (2) StPO, defense counsel must be appointed at the latest when the defendant is requested to explain the indictment, i.e. when it is served on him and the interim proceedings begin. A public defender is usually appointed to a defendant at this point in time. By requesting the accused to nominate a defense attorney of his choice as a possible public defender, the court prepares its opening decision.

If it turns out later that a case of necessary defense exists, the public defender must be appointed immediately.

At the request of the public prosecutor's office, it is also possible to appoint a defense attorney earlier, i.e. during the preliminary investigation (Section 141 (3) StPO). However, it is a matter of discretion. In any case, the appointment has a retroactive effect in terms of fees up to the point in time at which the defense attorney first reported in the proceedings (even if he - initially - had reported as a defense counsel).

However, there is an important exception to the public prosecutor's right of application in the preliminary investigation if remand custody is enforced against the accused. Here must according to § 140 para. 1 no. 4, a public defender be appointed immediately at the start of pre-trial detention ( "after enforcement") in conjunction with § 141 para. 3 StPO. The investigating judge is responsible for the assignment. According to the previous legal situation (see Section 117, Paragraph 4 of the Code of Criminal Procedure (StPO) old version), it was often necessary to wait three months, since a claim only existed from this point in time and the public prosecutor's office generally did not exercise its discretion in the interests of the remand prisoner.

On December 13th, 2019 both the “Law on the Modernization of Criminal Procedure of December 10th, 2019” and the “Law on the New Regulation of the Law of Necessary Defense v. 10.12.2019 ”(BGB l I, p. 2128) entered into force. This is intended to implement the EU Directive 2016/1919, i.e. the so-called PKH Directive. The accused now has his own right of application, which he must assert accordingly in accordance with Section 141 (1) sentence 1 StPO. If the accused expressly requests the assignment of a public defender after having been instructed accordingly, his request must be granted in the cases of the necessary defense.

Selection of public defender

In principle, anyone who can act as a public defender according to Section 138 (1) StPO, i.e. a lawyer or a law teacher at a German university , can be appointed as public defender .

Before a defense counsel is appointed, the presiding judge should give the accused the opportunity to nominate a defense counsel of his choice within a certain period of time. If the accused appoints a specific defense attorney, the chairman appoints him if there is no good reason to the contrary ( Section 142 (1) StPO). In principle, a local lawyer should be appointed. If there is a special relationship of trust, an external defense attorney can also be chosen.

Under special circumstances, the appointment of a legal clerk can also be considered (see Section 142 (2) StPO).

Compensation of the public defender

The public defender is appointed by the court and therefore asserts his claim for remuneration against the state treasury. The public defender fees sized usually amounting to 80% of the agents charge the respective fees facts, that are often lower than the costs incurred for an election defender fees. In the case of a foreign lawyer, it is inadmissible to make the appointment on the condition that the treasury does not incur any additional costs, i.e. the public defender should be treated as if he were a resident in terms of remuneration.

In cases that are particularly extensive or particularly difficult to process, a flat fee can be set that is higher than the usual public defender remuneration ( Section 51 (1) RVG ( Lawyers' Remuneration Act )).

In cases in which the defense attorney can prove that the defendant is economically in a position to also pay attorney's fees, the court can determine, according to Section 52 (3) and (4) RVG , that the defendant is able and obliged to pay attorney's fees is. If the defendant is charged with the costs of the proceedings and his expenses, the state treasury demands the reimbursement of the public defense attorney's remuneration from the convicted defendant.

If the costs of the proceedings are wholly or partially imposed on the state treasury (acquittal or partial acquittal), the public defender is entitled to charge the public defender's fees to the state treasury.

Compulsory defense in juvenile criminal law

In juvenile criminal law, a necessary defense according to § 68 JGG is given:

  • if a public defender would have to be appointed to an adult
  • if the judge has excluded the legal guardians from representing the child in accordance with Section 67 (4) JGG because they are involved in the act
  • if the judge has excluded the legal guardian from the main hearing according to § 51 Abs. 2 JGG
  • if the accused is to be accommodated in accordance with § 73 JGG to investigate his level of development

Compulsory defense outside of criminal proceedings

The concept of necessary defense is not only used in criminal proceedings. A counterpart can be found, for example, in Section 90 WDO , which, comparable to Section 140 (2) StPO, provides for the assignment of a public defender in military disciplinary proceedings if this appears necessary due to the difficulty of the factual and legal situation.

Individual evidence

  1. ^ Wessing in: Beck'scher Online-Comment StPO, Ed .: Graf, Edition: 19 As of: September 8, 2014 (BeckOK StPO), § 141 Rn 1 a. E.
  2. ↑ http://www.bgbl.de/xaver/bgbl/start.xav?startbk=Bundesanzeiger_BGBl&jumpTo=bgbl119s2115.pdf
  3. ↑ Mario Dujmovic: Public Defender - necessary assignment

Web links

Wiktionary: Public Defender  - explanations of meanings, word origins, synonyms, translations