Criminal Defense Attorney (Germany)

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A criminal defense attorney is a legal advisor who assists the accused in criminal proceedings . In the German Code of Criminal Procedure (StPO) he is referred to as a defense attorney .

The right of every accused to consult a defense counsel is standardized in § 137 StPO ( right of the accused to consult a defense counsel ).

Organ of justice

In addition to the public prosecutor's office and the court, the defense attorney is an independent, autonomous body responsible for administering justice (see also § 1 BRAO ). This position is based on the professional law of lawyers , although not only lawyers can act as defense lawyers ( § 138 StPO). The defense attorney is on an equal footing with the court and the public prosecutor's office and, in this respect, has equal rights . This means in particular that he is not bound by instructions from the court or the public prosecutor's office. Conversely, of course, he cannot issue any instructions. In addition, of course, there is the task of the chairman of the court to lead the hearing. As part of this task, the chairman can, for example, allow defense counsel to speak or withdraw it. In practice, there is a certain area of ​​tension here, which has to be dealt with in the individual case, taking into account the principles of impartiality, the granting of a fair hearing but also the implementation of the procedure.

Defense counsel person

Each accused may name up to three defense counsel of his choice ( Section 137 (1) of the Code of Criminal Procedure). If the accused has a legal representative, this defense counsel may also elect, but no more than three ( Section 137 (2) StPO). If public defenders are appointed by the court, this does not limit the maximum number of defense counsel, as the law has not made any provision. It is therefore possible for a defendant to have more than three defense counsel.

Any lawyer and any legal teacher at a German university can be elected as defense counsel ( Section 138 (1) StPO). Such a defense counsel may delegate the defense to a legally qualified person, namely a trainee lawyer who has been active for at least one year and three months ( Section 139 of the Code of Criminal Procedure). In addition, legal trainees can also be appointed as independent public defender for first instance in accordance with Section 142 (2) of the Code of Criminal Procedure.

In addition, there is the option of defense by a legal representative or another person who enjoys the trust of the accused and who has been approved by the court beforehand ( Section 138 (2) StPO). Such approval according to § 138 Abs. 2 StPO is to be granted if the chosen person has the confidence of the accused / accused, if they appear sufficiently knowledgeable and trustworthy and if there are no other concerns about their appearance as defense counsel.

For example, after such an approval within the meaning of Section 138 (2) of the Code of Criminal Procedure (StPO), a tax advisor can also act as sole defense counsel in criminal tax proceedings before the local court or the regional court. In the case of a necessary defense, however, this can only be done in association with a person (lawyer or university professor) who is not separately admitted according to this provision. In the area of ​​criminal tax law, a tax advisor according to Section 392 AO (i.e. by law) can always appear in association with a lawyer or another person within the meaning of Section 138 (1) StPO as (co-) defense counsel before the local court or the regional court; no judicial approval is required.

At any point in the criminal proceedings, i.e. in the preliminary proceedings ( preliminary proceedings ), interim proceedings and in the main hearing and in every instance, the accused has the right to call in a defense attorney. According to Art. 6 III lit. c ECHR , Art. 14 d IPbpR , this is one of the principles of a fair trial. The convicted person may also avail himself of legal assistance in the execution of sentences. The accused must be informed about this ( Section 136 (1) StPO, Section 114b (2) number 4 StPO). The accused must not be threatened with disadvantages in the event that a defense counsel is called in. If the accused declares that he wants to call in a defense attorney, the interrogation must be interrupted immediately and the defense attorney must be awaited.

The defense lawyer is not bound by the instructions of the accused, but has - within the framework of what is legally permissible - to serve the interests of his client alone. In this respect, his position is not comparable to that of the public prosecutor or that of the judge; in contrast to them, he is only obliged to serve the well-understood interests of his client under the applicable laws.

The defense of several accused in the same procedure is legally inadmissible due to possible conflicts of interest ( § 146 StPO, § 356 StGB ). Otherwise, at least lawyers as defense lawyers are professionally prohibited from representing conflicting interests.

Elective or compulsory defense

The normal case assumed by law is the choice of defense counsel by the accused. Between defenders and their clients a contract is concluded in these cases, which regularly remunerated management contract and largely the rules of the service contract law applies. The client is therefore initially liable for the defense counsel's claim for remuneration.

A public defender, on the other hand, is to be appointed if the accused does not have an election defender, but there is a case of the necessary defense . A necessary defense exists in the cases referred to in Section 140 of the Code of Criminal Procedure, in particular in cases before the regional court or higher regional court in the first instance, in the case of a criminal charge , an impending professional ban or if a security procedure is carried out if a prison sentence of more than one year is expected or the accused cannot defend himself. In addition, a public defender can be appointed in addition to a defense counsel if the procedure is extensive and should therefore be prevented from having to suspend the main hearing due to the failure of the defense counsel. The appointment of up to two defense lawyers has been regulated in § 144 StPO since December 13, 2019 .

Defense strategies

In the context of defense strategies, a distinction must be made between the defense objective or the means used to achieve it:

The defense objective can be the termination of the proceedings or an acquittal . This will regularly be the case when conviction can be avoided.

If a conviction appears unavoidable, the defense objective is to achieve the mildest possible sanction. Whether this consists of a conviction only to a fine , a custodial sentence , the execution of which is suspended on probation , a shorter custodial sentence or an accompanying measure, such as placement in a rehab facility, naturally depends on the circumstances of the individual case.

Means of defense can be the preparation of a statement by the accused, the advice to him to exercise his right to remain silent, the naming of his own witnesses, etc. The means of defense also include so-called conflict defense, although this term has so far only been scientifically defined to a limited extent. If there are several suspects, the so-called base defense can be considered as a special form .

Remuneration of the lawyer acting as defense counsel

The remuneration was earlier based on the BRAGO . Since July 1, 2004, the RVG lawyer remuneration law has been used for billing. This so-called statutory remuneration also forms the measure of what is to be reimbursed by the state treasury to an acquitted defendant. In the context of a remuneration agreement , the defense attorney can also promise higher remuneration, in particular agreeing a time fee or a flat fee .

See also

literature

Web links

Individual evidence

  1. ↑ BVerfG, judgment of March 11, 1975, Az. 2 BvR 135-139 / 75, BVerfGE https://dejure.org/dienste/vernetzung/rechtsprechung?Gericht=BVerfG&Datum=11.03.1975&Aktenzeichen=2%20BvR%20135%2F75 , Full text
  2. ↑ See OLG Hamm, decision of January 12, 2006 - 2 Ws 9-11 / 06.
  3. ↑ See LG Hildesheim, decision of February 18, 2010 - 25 KLs 5101 Js 76196/06 (rkr.).