Criminal defense lawyer

A criminal defense lawyer is the accused asked in any criminal case to side defender.

The administration of justice

The defender is next to the prosecutor and the court an independent, separate organ of the administration of justice (BVerfGE 39, 156 ff, see also § 1 Bundesrechtsanwaltsordnung ). Since the term has been used to the " court or tribunal " in the past by the courts mostly to rebuke unwelcome defender behavior, one is now in the recent literature largely agree that this term is no more than empty words. According to another view, but it should also be stakeholders of the client. Applying this idea consistently, would the defenders as a contractor only following orders and instructions completely dependent, similar to the tenured prosecutor.

The defense lawyers is the court and the prosecutor's office ordered the same. But: It is not part of the court or the prosecutor, but regardless of this. It is equally, if one can assume that this is due to the balance of power. This means in particular that it is not bound by any instructions by the court or the prosecutor. Conversely, it can of course give any instructions.

Defender may acc. § 138 para 1 CCP be any lawyer and any law professor at a German university. According to § 139 Code of Criminal Procedure and the defense comes through a jurist ( law clerk ) into consideration. In special cases, also provides § 138 paragraph 2 Code of Criminal Procedure, the possibility of defense by a chamber counsel or another person who enjoys the confidence of the accused. For example, in criminal tax proceedings before the district court also an accountant to act as defenders. In the event of necessary defense before the district court, this can be carried out only in communion with a lawyer.

At any time during the criminal proceedings, ie in the pre-trial (pre-trial ), intermediate proceedings and at the trial and in each instance, the accused has the right to be represented by counsel. According to Article 6 III lit. c ECHR, Article 14 ICCPR d this one of the principles of a fair trial. Since 1 January 2010, § 140 I No. 4 Code of Criminal Procedure (new version ). After a defender has to be ordered, if remand is ordered. Also in the enforcement of sentences an offender legal counsel is permitted to operate.

The criminal defense lawyer is not bound by any instructions of the accused, but - only to serve the interests of his client - to the extent legally permissible. His position is not comparable with that of the prosecutor or the judge, he is unlike them committed only to the interest of the client in the context of applicable laws.

The defense of several accused in the same case is due to possible conflicts of interest prohibited by law ( § 146 Code of Criminal Procedure, § 356 StGB).

Choice defense

Choice defense is the defense, which is done by the defenders freely chosen and paid by the defendant or accused. It is no different from the mandatory defense of content, even if the parties have sometimes less confidence to a court-appointed public defender, as to a lawyer, they have chosen for yourself.

Deposition of choice defenders mandate for the purpose of appointment of a public defender

A choice defenders often determines the choice defenders mandate down in the event of his appointment of a public defender (conditional resignation ) and requested its appointment of a public defender. This is for the attorney advantageous insofar as he then gets the public defender fees from the state treasury. Although the fees are lower than that of the choice defender, however, the public defender is still the same sum which he may claim from the State Treasury, to be paid by the client. He has, however, indicate the Exchequer Payments. Go before the charges are refunded by the Treasury at a defender, it will be credited to the assigned counsel fees. Go one later, the defender gets to keep them.

Choice defense triggers mandatory defense compulsory from

Choice defenders like to apply in criminal proceedings as their appointment of public defenders. You can then make all charges claimed as public defender fees they have already realized before assigning to it, if they can demonstrate a strafprozessual promotional activity.

This is problematic with regard to the legal profession also zoom reaching the limits of what is permissible tussle between the defenders to the appointment of the public defender. It must be understood that within the scope of the mandatory defense of the accused or defendant may appoint a defense attorney who is also attached to a regular basis. For it is true according to Article 2, Paragraph 1 of the Basic Law in conjunction with the rule of law of the Basic Law, the right of the accused to be defended in criminal proceedings by a lawyer of his choice and his confidence ( reference omitted 26, 66, 71, 39, 238, 243, 66, 313, 318 stRspr ).

The accused, who late - namely in the context of the opening decision, or even only at the trial - a defender gets attached to a public defender, is asked by the court whether he would appoint a lawyer (see the hearing of the accused / defendant BGH Acceleration v 25. November 2000-5 StR 408/ 00 - ). Failure by the defendant the appointment, the court shall order at a public defender from a list of lawyers who have indicated their willingness to the court to take on mandatory defenses. Explains the accused that he had lost confidence, then the Court is in principle entitled and obligated to maintain the public defender, unless the defendant carries his concerns in time before the trial ( writing) as part of the process of promoting compulsory.

Mostly, however, expresses not the accused or defendant himself that he had lost confidence in his appointed public defender, but it seems a choice defenders. In the event that a choice defender legal defense is terminated.

The choice defender can now despite formal and material need to defend not apply for the appointment of the public defender because this would be contrary Attorney's professional ethics ( st. ). Have the lawyers but " agreed " in advance before the trial, what happens in the form that the current public defender is replaced, the new public defender but dispenses with the already from the previous defenders to be claimed fees, a defender change comes over for these defenders into consideration. His attorney as choice defender reads but then only as a testimony of the defendant to have the former public defenders lost the confidence (see the authorization of another defense lawyer as a sign of lack of confidence to the previous public defender: BVerfGE 2 BvR 1152/ 01 of 25 September 2001 ). Another defender change is hardly accepted by the court.

Mandatory defense

In the cases of necessary defense is the defendant to appoint a public defender ( § 140 Code of Criminal Procedure ).

Defense strategies

• Defense to the proceeding,
• Defense for acquittal
• Defense to punitive
• Base defense
• Conflict defense

Remuneration

The compensation was formerly carried by the BRAGO. Since 1 July 2004 must be settled pursuant to the Attorney Fees Act RVG. Because the statutory compensation for the criminal defense lawyer is uneconomical usually a payment arrangement is completed often. Such compensation agreement may include a calculation on an hourly basis or a flat fee determined for the whole process or individual sections. A significant risk is the defense lawyers from the criminal offense of money laundering grown, § 261 of the Criminal Code. If the defender fee takes, although he definitely knows that this comes from crime, he makes himself liable to prosecution. With the larger public prosecutors, there are now special departments for the prosecution of money laundering.