Definition and Role of the Defense Counsel in the Legal System
The concept defense counsel describes, in a legal context, a person who formally represents a party, particularly in criminal proceedings, and safeguards their interests. In criminal law especially, the defense counsel plays a central role: they defend the rights of the accused or defendant in proceedings against law enforcement authorities and before the court. The activities of the defense counsel are both a tool for enforcing fundamental procedural rights and a prerequisite for a fair trial according to the principles of the rule of law.
Legal Foundations of the Defense Counsel
Code of Criminal Procedure and Legal Basis
The key provisions regarding the defense counsel are found in the Code of Criminal Procedure (StPO), particularly in §§ 137 et seq. StPO. The role, appointment, duties, and powers of the defense counsel are set out in detail there. Article 6(3) of the European Convention on Human Rights (ECHR) also guarantees the right to defense by a counsel of one’s choosing.
Admission and Appointment as Defense Counsel
A defense counsel in criminal proceedings is generally a lawyer authorized to represent clients before the court. The appointment as defense counsel can be made by the client (retained defense counsel) or by the court (court-appointed counsel).Retained defense counsel: In principle, the accused may freely choose whom to entrust with their defense. The appointment is made by granting the corresponding power of attorney.Court-appointed counsel: In certain cases, the law mandates the involvement of a defense counsel (mandatory defense), for example in serious criminal offenses or when the defendant cannot defend themselves. In these instances, the appointment is made by the court.
Incompatibility and Grounds for Exclusion
To ensure fairness of the proceedings, certain persons are excluded from taking over the defense. In particular, judges, prosecutors, and officials of investigative authorities are not permitted to act as defense counsel. Further grounds for exclusion may include personal relationships between the defense counsel and the party, or a conflict of interest.
Duties and Obligations of the Defense Counsel
Defense of the Client’s Rights
The main task of the defense counsel is to protect the rights of the accused/defendant at every stage of the proceedings. This includes, among other things:
- Advising and informing about rights and risks
- Inspection of records (§ 147 StPO)
- Filing motions, requests for evidence, and other procedural initiatives
- Participation in interrogations, main hearings, and other procedural acts
Confidentiality and Secrecy
The defense counsel is subject to a comprehensive duty of confidentiality (§ 43a (2) BRAO). All information obtained in the context of the attorney-client relationship may not be disclosed without the client’s express consent. Breaches of confidentiality are subject to criminal penalties.
Independence and Individual Responsibility
The defense counsel is independent in the exercise of their profession and is bound exclusively to the interests of the client. However, they are subject to the law. There is no right for third parties to issue instructions.
Duties of Care
The defense counsel is obliged to safeguard the interests of the client with the necessary diligence and to exhaust all legal means in their favor. This also includes the duty to pursue regular continuing education and always to consider the current legal framework.
Defense Counsel in Different Types of Proceedings
Criminal Proceedings
In criminal proceedings, the defense counsel is a key figure in ensuring equality of arms. They participate as counsel to the accused in all essential stages of proceedings and are entitled to assert procedural rights (e.g., motions for evidence, legal remedies).
Administrative Offenses Law
In administrative offense proceedings as well, the party concerned may be represented by a defense counsel, for instance in fine proceedings, where the rights of the defense counsel are analogous to those in criminal proceedings.
Juvenile Criminal Law
Special rules apply in juvenile criminal proceedings (§ 68 JGG). Here, the appointment of a defense counsel is more frequently mandatory, for example when the proceedings may lead to particularly severe consequences or the interests of the juvenile cannot otherwise be adequately protected.
Rights of the Defense Counsel
Right to Access to Files
A central right of the defense counsel is access to the files. This allows for appropriate preparation of the defense and is a prerequisite for the right to be heard. Access to files includes all documents relevant to the case.
Presence and Participation in Proceedings
The defense counsel has the right to attend all interrogations and the main hearing. They may assist the accused, ask questions, and carry out procedural actions such as making motions and statements.
Contact with the Client
The defense counsel has unrestricted access to the client, even in pre-trial detention. The defense may not be monitored or obstructed by the authorities (so-called defense privilege).
Obligations and Limits of the Defense Counsel
Prohibition of Aiding and Abetting the Obstruction of Justice
The defense counsel must not deliberately obstruct proceedings illegally or contribute to the obstruction of justice. Professional duties and criminal law set clear boundaries here.
Duty of Truthfulness
Despite the obligation to represent the client to the best of their abilities, the defense counsel is not, in the strict sense, obliged to tell the truth, but is, however, required not to knowingly present or produce false facts as evidence.
Conflicts of Interest and Withdrawal from Mandate
If a conflict of interest exists, for example by representing several accused persons with conflicting interests, the defense counsel must withdraw from the mandate.
The Defense Counsel in International Law
The right to defense is not only reflected in national law, but is also guaranteed by international agreements, such as the European Convention on Human Rights (Art. 6 ECHR) and the International Covenant on Civil and Political Rights (Art. 14). These provisions ensure that the accused has comprehensive defense rights in criminal proceedings.
Historical Development and Significance
The right to defense is a fundamental element of modern rule-of-law states. Over the course of legal history, the opportunity to obtain advice and representation from a defense counsel has been continuously expanded and is today an integral part of fair criminal proceedings. It contributes to ensuring equality of opportunity between prosecution and defense and to preventing miscarriages of justice.
References
- Code of Criminal Procedure (StPO)
- Federal Lawyers’ Act (BRAO)
- Courts Constitution Act (GVG)
- European Convention on Human Rights (ECHR)
- Commentary on the StPO (Meyer-Goßner/Schmitt)
- Löwe-Rosenberg, StPO Commentary
Conclusion
The defense counsel plays a central and indispensable role in the legal system. Their statutory powers, obligations, and rights ensure a fair process and safeguard the interests of the defended party. The legal design of the defense is a fundamental element of rule-of-law proceedings and constitutes one of the most important pillars of the administration of criminal justice.
Frequently Asked Questions
What are the duties of a defense counsel in criminal proceedings?
In criminal proceedings, the defense counsel assumes a wide range of tasks to best represent the rights and interests of the accused. At every stage of the proceedings, they are entitled to inspect files (§ 147 StPO), submit motions for evidence, make applications and statements, as well as raise doubts about the lawfulness of police or judicial actions. The defense counsel examines the initiation and content of a criminal case, develops a defense strategy with the client, and ensures that the right to a fair trial is upheld. During investigations, the defense counsel may attend police interrogations, prepare statements, and obtain exculpatory material. In the main court proceedings, they plead the case, submit motions, question witnesses and experts, and ensure that the client’s rights are not violated. In cases of deprivation of liberty, they ensure that conditions are appropriate and review custody decisions. After a conviction, the defense counsel continues to act for the client through legal remedies such as appeal or revision. Throughout the proceedings, confidentiality is maintained and strict professional rules apply.
How is a court-appointed defense counsel appointed?
A court-appointed defense counsel is assigned in cases required by law of so-called ‘necessary defense’ under § 140 StPO. This is mandatory if special conditions are met, such as serious criminal charges (felonies), pre-trial detention, or when the accused is unable to defend themselves (e.g., due to a mental or physical disability). Upon application by the accused or ex officio, the court assigns a defense counsel in such cases. If the accused wishes for a specific defense counsel, this request is usually granted unless important reasons oppose it. The court-appointed counsel takes on the same tasks as a retained defense counsel, but is paid by the state. This appointment can be revoked if the requirements no longer apply or if the accused wishes to mandate a retained counsel.
When is it possible to change defense counsel?
A change of defense counsel in criminal proceedings is generally possible, but is subject to certain conditions. For retained counsel, the accused may terminate the mandate at any time and instruct another lawyer, although any contractually agreed fees must be observed. In the case of court-appointed counsel, a change is only permitted under strict conditions: The court may, upon the request of the accused or the counsel, order a change if the relationship of trust is seriously disrupted or if, for compelling reasons, the appointment of another counsel seems necessary (§ 143a StPO). Mere discomfort or a tactical motivation is insufficient; it must be shown why effective defense is not (or is no longer) guaranteed.
What rights and duties does a defense counsel have towards their client?
The defense counsel is obliged to provide comprehensive and careful advice and to conscientiously represent the client’s interests. This includes, in particular, informing the client about the status of proceedings, existing evidence, legal options and risks, and the prospects of success for specific defense actions. The professional duty of confidentiality (§ 43a BRAO, § 203 StGB) is one of the central duties: The defense counsel may not provide any information to third parties about the attorney-client relationship or its contents, unless the client expressly releases them from this obligation. The defense counsel must act loyally but independently and may not represent conflicting interests. They may not suppress or manipulate evidence and must always work within statutory and professional boundaries.
What powers does a defense counsel have in the investigation proceedings?
In preliminary investigations, the defense counsel has numerous procedural rights to exercise an effective defense. Chief among these is the right to inspect the files, giving the counsel access to all relevant investigative documents. The defense counsel has the right to be present at interrogations of the client or at judicial hearings, to make suggestions or requests for evidence, make applications for bail or suspension of custody, and to draw attention to any procedural errors during the investigation. They may also meet with their client regardless of whether the client is in pre-trial detention; however, certain visitation rules apply in custody. The defense counsel can object to police measures and request judicial review of decisions made in the proceedings.
What costs are incurred through the defense and who bears them?
Defense costs differ according to the type of appointment. For retained defense counsel, the client and counsel agree on a fee arrangement, either based on the Lawyers’ Fees Act (RVG) or by individual agreement. Additional costs may include expenses for expert opinions, travel, or other necessary measures. If a court-appointed counsel is assigned, the state treasury initially bears the costs of the necessary defense. However, if the defendant is convicted, the costs may, wholly or in part, be imposed on them in accordance with the principle of cost reimbursement (§ 465 StPO). In case of acquittal or discontinuation in favor of the client, the costs generally remain with the state. A switch from retained to court-appointed counsel may affect who bears the costs.
What role does the defense counsel play regarding legal remedies such as appeal or revision?
After a court decision, the defense counsel advises the client on the admissibility and prospects of success of legal remedies such as appeal (against judgments of the district court) or revision (against judgments of the regional or higher regional courts). The counsel is entitled to file these remedies in the records or in writing. The defense counsel ensures that deadlines are observed and substantiates the legal remedy with arguments relevant to contesting the judgment. In revision proceedings, the defense counsel specifically examines for procedural errors or errors of law that may justify the annulment or modification of the judgment. Here as well, confidentiality is maintained and the client is kept informed of the progress of proceedings at all times. In individual cases, the counsel may withdraw the legal remedy if, after discussing with the client, it appears advisable from a strategic viewpoint.
