The public defender
what is that? When am I entitled to a lawyer?
The term “public defender” is often used in criminal proceedings. But what is meant by this term? Is there a difference to the "normal" defender? Another essential question: who has to pay the public defender? We'll enlighten you.
A public defense lawyer is a lawyer who defends a defendant as a criminal defense lawyer in criminal proceedings. A basic distinction must be made between a so-called “election defender” and a “mandatory defender”, although it should be pointed out that a mandatory defender is by no means a “worse” defender. While the defender is commissioned by the accused, the defender is assigned by the court to the accused due to a special procedural situation.
The widespread opinion that a public defender is the advocate for “poor people” is completely incorrect. The assignment of a public defense lawyer is not related to the financial situation of the accused, so an equation with the so-called "legal aid" in civil proceedings is ruled out. For this reason, a mandatory defense lawyer would also be assigned to the CEO of a DAX company (if the legal procedural requirements are met).
The right to be assigned a mandatory defense lawyer exists if it is a case of the so-called "necessary defense". According to § 140 StPO, this is the case if:
There are also cases where inspection of the files is deemed necessary. However, since usually only one defense counsel has the right to inspect the investigation files, the court will assign a public defender to the defendant. In order to guarantee a fair trial, inspection of the files - and thus the assignment of a public defender - is required, among other things, if
If there is a "necessary defense" case, the court will provide the defendant with a mandatory defense lawyer. As mentioned above, however, this is done regardless of whether the accused has money or not.
If there is a case of necessary defense, the court will appoint a mandatory defense lawyer. However, the defendant is generally given the opportunity to nominate a specific lawyer within a period of time, which the court will then appoint as a lawyer. If the defendant fails to meet this deadline or if he does not know a lawyer at all, the court will select a lawyer and assign him.
In plain language, this means that the accused has no influence over which lawyer takes over the defense. So that your own fate does not depend on chance, you should always look for a suitable and trustworthy criminal defense lawyer yourself.
The answer beforehand: the defendant pays if convicted, the state treasury if acquitted. The widespread opinion that you do not have to pay a public defender yourself is incorrect. It depends on whether the accused is convicted or not. If so, the costs of the procedure are always imposed. This includes not only the court costs, but also the costs of mandatory defense.
Since the public defender claims his costs against the state treasury, he does not have to worry about the financial situation of the client. In practical terms, this means that the public defender receives his fees from the state treasury, but the state treasury later gets the money back from the convict. Section 74 of the JGG is an exception, according to which in juvenile criminal proceedings the costs of the proceedings (and thus the costs of the defense counsel) can also be waived even if convicted.
If an investigation has been initiated against you, I am available as a competent contact person. Get in touch with me by email or by phone so that we can arrange a meeting as soon as possible and we can coordinate the next steps together.
If you also need a lawyer or you have other questions about criminal law, do not hesitate to contact us. Our Lawyer Alexander Greithaner specializes in the field of criminal law and will also help you.