Public defender

As a public defender is called a coordinate the accused by the court defender in the German criminal procedure. In the Swiss and Austrian criminal procedure law, a similar legal institution with the official defense or the Office defenders.

Mandatory defense

In the cases of so-called need to defend the accused is to be appointed a public defender of its own motion, if the accused still has no defense counsel chosen by him (§ § 140 et seq Code of Criminal Procedure ). The public defender is paid by the state treasury and receive reduced fees. Public defender may agree with the client additional payment; exceeds this, however, the next of the Treasury also paid to assigned counsel fees, it is to be expected. If convicted, the defendants will pay the costs of proceedings in the rule; the Treasury invites the public defender fees incurred subsequently abandoned by the condemned. At the request of the public defender, the court may also find that the defendant is able to pay; he owes the public defender then the ( slightly higher ) legal fees of a choice defender. However, it is usually due to the insolvency of the convicted not for payment of these fees.

In contrast to the state-appointed public defender is the choice defender, the mandate of the defendant himself. Typically, the accused is notified by sending the indictment, that he should appoint a counsel of his choice and that he otherwise a public defender is appointed by the court in the case of a necessary defense. A possibly mandated by the defendant choice defender has the opportunity to make an application for appointment of the Public Defender, where he must resign from his elected office for this case. Ultimately, the defendant can thus determine his public defender even indirectly, provided the desired defender is also ready to take on the mandate and to act as a public defender.

Required defense

A public defender will be appointed only in cases of so-called necessary defense. Necessary Defense designates a procedural situation in which the legislator assumes that the accused can not defend themselves. If there is a case of necessary defense, as a public defender must be appointed if the accused has no defense. This is true even if the accused wishes to defend itself ( so-called "forced back ").

For the mandatory defense, it is irrelevant whether the accused can pay for his defense or not. In contrast to the legal aid, for example, in civil proceedings, or in the Austrian and the Swiss criminal law, is therefore in the German criminal proceeding is the possibility of attaching temporary one public defender because the accused can pay for a lawyer.

Pursuant to § 140 Code of Criminal Procedure, a case of necessary defense is given in the following situations:

• Main hearing before the District Court or Court of Appeal

• Suspected crimes

• Impending prohibition

• Enforcement of custody

• Prolonged deprivation of liberty

• Confinement for the expert opinion

• Assurance procedures

• Defender exclusion

• Other cases of necessary defense

Date of appointment of the Public Defender

Pursuant to § 141 para 1 and 2 Code of Criminal Procedure of the defenders must be ordered no later than when the accused is asked to explain about the appropriateness action complaint, if it this is so delivered and the intermediate process begins. An accused person is usually appointed a public defender at this time. The call to the accused to appoint a counsel of his own choice as a possible defense counsel, the Court is preparing its opening decision.

If, later, that a case of necessary defense exists, the Public Defender shall be appointed immediately.

At the request of the public prosecutor, a defense order is earlier, ie already in the preliminary proceedings (§ 141 para 3 Code of Criminal Procedure ). However, it is a discretionary provision. The order affects in any case legally charge up to the time back when the defender has reported first time in the process (even if he himself - had been reported as election Defender - first ).

An important exception to the prosecutor's application in the investigation right there but then when enforced against the accused on remand. Here must be ordered immediately with the start of pre-trial detention ( " after enforcement " ) pursuant to § 140 Section 1 No. 4 in conjunction with § 141 para 3 Code of Criminal Procedure, a public defender. Responsible for the appointment of the investigating judge. After earlier legislation (cf. § 117 Code of Criminal Procedure, Section 4 old version ) often had to wait three months because only from that date there was a claim and the prosecution has not exercised its discretion in the rule for the purposes of investigation prisoner.

Selection of the Public Defender

For public defender can always be ordered, who can act as 1 CPC choice defender pursuant to § 138 para, ie a lawyer or a law professor at a German university.

Before a defender is appointed, the presiding judge shall give the accused an opportunity to designate a counsel of his choice within a specified period. Renames the accused a particular defense, the chairman ordered this when the no important reason precluding ( § 142 para 1 CCP ). Basically, a local lawyer to be named. If a special relationship of trust, but also a foreign defenders can be selected.

In exceptional circumstances, the appointment of a trainee lawyer comes into consideration (cf. § 142 para 2 CCP).

Remuneration of the Public Defender

The public defender is appointed by the court and makes his compensation claim therefore against the Treasury contends. The public defender fees are generally lower than those that could have claimed the defender as a choice defenders. When foreign lawyer but it is not permitted to make the appointment with the proviso that the Treasury thus do not incur additional costs, ie the lawyer is therefore to be treated with regard to pay as he was a resident. In cases, their processing is particularly large or particularly difficult, a lump may be fixed, which is above the usual public defender compensation (§ 51 Section 1 of the RVG ( Rechtsanwaltsvergütungsgesetz ) ).

In cases where the defender can prove that the defendant is financially able to pay choice defender fees, the court may, pursuant to § find 52 para 3 and 4 RVG that the defendant for the payment of choice defender fees able and committed is. If the defendant pay the costs of the proceedings and his expenses shall request the state treasury from convicted defendants refund the fixed public defender fee.

If the costs in whole or in part, the Treasury imposed ( acquittal or partial acquittal ), the public defender is entitled to settle choice defender fees in this amount against the Treasury.