Definition and Legal Classification of Necessary Defense
Necessary defense is a central instrument of criminal procedure law and ensures the comprehensive protection of the defense rights of an accused person in criminal proceedings. The term refers to cases in which the participation of defense counsel is mandatory, regardless of whether the accused wants this or can afford a defense attorney. The regulations regarding necessary defense are set out in the Code of Criminal Procedure (StPO) and serve to ensure a fair, constitutional procedure.
Legal Basis for Necessary Defense
The statutory basis for necessary defense is found especially in § 140 of the Code of Criminal Procedure (StPO). In addition, further sections contain related orders and procedural instructions. The aim is to ensure that criminal proceedings are lawfully conducted and that the accused is represented by counsel in certain particularly significant situations.
§ 140 StPO – Cases of Necessary Defense
According to § 140 (1) and (2) StPO, the involvement of a defense counsel is mandatory when certain preconditions exist. These situations are distinguished as discretionary (para. 1) and compulsory (para. 2). In such cases, the proceedings cannot be conducted without a defense attorney (so-called defense counsel requirement).
Areas of Application of Necessary Defense
Necessary defense is prescribed in various situations. § 140 StPO provides a comprehensive list of these. The most important categories are:
Seriousness of the Expected Sentence
If a custodial sentence of at least one year is to be expected, the law provides for necessary defense. This serves to protect the accused from severe consequences and contributes to equality of arms in the proceedings.
Court of Assizes, State Security and Juvenile Chambers
In proceedings before the court of assizes, the juvenile chamber as the first-instance court, or in cases of state security offenses (§ 120 GVG), the involvement of defense counsel is mandatory in order to account for the complexity and significance of such proceedings.
Pretrial Detention or Other Measures Depriving Liberty
Accused persons subjected to pretrial detention are under the protection of necessary defense. The same applies in cases of placement in a psychiatric institution or certain restrictions of liberty.
Preparation of Preventive Detention
If preventive detention is at issue, necessary defense must also be ordered.
Obvious Inability to Defend Oneself
If it is evident that the accused cannot defend themselves, for example due to mental or physical impairments, a defense counsel must be appointed.
Cases of Particular Difficulty or Seriousness
If the legal or factual situation is considered exceptionally complex, or if the alleged offences are especially serious, the court will order necessary defense.
Waiver or Non-Availability of a Defense Attorney
If a chosen defense attorney relinquishes the mandate or is otherwise unavailable, the court appoints a court-appointed defense attorney. The same applies if the accused has not nominated anyone.
Process of Appointing a Court-Appointed Defense Attorney
If a case of necessary defense exists, the court must appoint a so-called court-appointed defense attorney. The procedure is governed by the stipulations of the Code of Criminal Procedure.
Selection Procedure
According to § 142 (5) StPO, the accused must be given the opportunity to name a lawyer of their choice within a specified period. If they do not do so, the court makes the selection. The appointment and, if necessary, the replacement of the court-appointed defense attorney follow strict legal rules.
Effect of Appointment
The appointment grants the defense counsel certain rights, such as access to files and participation in main hearings. The court-appointed defense counsel exercises the defense independently and under their own responsibility.
Costs of Necessary Defense
The costs of the court-appointed defense attorney are initially borne by the state treasury. If the accused is subsequently convicted, these costs may be imposed on them. In the case of an acquittal or the termination of proceedings, the state bears the costs permanently.
Distinction from Chosen Defense Counsel
The chosen defense counsel contrasts with necessary defense. While the chosen defense attorney acts on the initiative and at the expense of the accused, necessary defense is a procedure mandated by the state in the interest of legal certainty. A court-appointed defense attorney is appointed only in cases of necessary defense.
Importance of Necessary Defense for a Fair Criminal Trial
Necessary defense stems from the constitutional principle of the right to be heard (Art. 103 (1) GG) and international standards, such as those of the European Convention on Human Rights (ECHR, Art. 6). It is an indispensable instrument to ensure a fair trial.
Legal Remedies and Complaints
Decisions regarding the appointment or non-appointment of a court-appointed defense attorney are subject to judicial review. A corresponding application for appointment may be submitted. Rejection can be challenged by immediate complaint.
Literature and Further Information
Necessary defense is extensively covered in relevant secondary literature. Government agencies, such as ministries of justice and courts, provide further information and information sheets on necessary defense in criminal proceedings.
Summary: Necessary defense protects accused persons in certain criminal proceedings from considerable procedural disadvantages and is an expression of the rule of law guarantees. Its regulations ensure that every accused is effectively defended under difficult circumstances, even when they have no resources of their own. The court-appointed defense attorney thus becomes an indispensable component of an orderly criminal procedure.
Frequently Asked Questions
Who bears the burden of proof when someone invokes necessary defense?
In legal terms, the burden of proof for the preconditions of necessary defense essentially lies with the defendant or their legal counsel. This particularly involves demonstrating that a situation existed which required defense within the meaning of § 140 StPO or similar provisions, such as the gravity of the offense, the complexity of the proceedings, or the threat of a severe sentence. However, the court is independently obliged to examine whether a case of necessary defense exists within its official duties, and it can also appoint a court-appointed defense attorney without an application if the legal requirements are fulfilled. Thus, the initiative can come from either the defense or the court, but ultimately the court decides on the necessity. If the court concludes that necessary defense exists, appointment of a court-appointed defense attorney is mandatory, regardless of whether the defendant wishes to defend themselves.
Can necessary defense be ordered even during the investigation stage?
Yes, according to German criminal procedure law, necessary defense can be ordered already during the investigation proceedings. This is especially the case if one of the conditions in § 140 (1) or (2) StPO is met or if the involvement of a defense attorney appears indispensable for safeguarding the rights of the accused. Examples include judicial interrogations, the application of pretrial detention, or imminent placement in a psychiatric hospital. The investigation stage is characterized by a significant asymmetry between the public prosecutor’s office and the accused, so in certain cases the accused must be provided with a court-appointed defense attorney even before charges are brought, to ensure equality of arms and a fair trial. The order is issued by the investigating judge or, if no judge is involved, by the public prosecutor’s office. Early appointment is intended to prevent the accused from suffering significant disadvantages early in the proceedings due to a lack of legal knowledge.
Is necessary defense possible even without an application from the defendant?
As a rule, necessary defense does not have to be requested. The court is obliged to examine, ex officio, whether the requirements for necessary defense are met. As soon as one of the legal prerequisites is fulfilled – for example, the indictment for a serious crime, the threat of a custodial sentence of more than one year, or the apparent inability of the defendant to adequately defend themselves – the court must act independently and appoint a court-appointed defense attorney without any application. This so-called official principle ensures that the defendant is defended even if they themselves do not recognize the necessity or do not apply for a defense counsel. If the court fails to appoint a court-appointed defense attorney despite the requirements being met, this constitutes an absolute ground for appeal under § 338 No. 5 StPO, which can lead to the annulment of the judgment.
What rights and duties does a court-appointed defense attorney have in cases of necessary defense?
A court-appointed defense attorney generally has the same rights and duties as a chosen defense attorney. Rights include, in particular, the inspection of files, the right to be present during interrogations, participation in all main hearings, as well as the right to file motions for evidence and submit legal remedies. On the other hand, the court-appointed defense attorney is obliged to conduct the defense with due diligence and in the interest of the client, regardless of whether the mandate was taken on voluntarily or due to legal obligation. The court-appointed defense attorney is liable for any breaches of duty and may be dismissed if the relationship of trust is seriously disrupted or if they seriously neglect their duty to defend. The remuneration of the court-appointed defense attorney is initially paid by the state, but after a conviction the defendant may be required to reimburse these costs.
When does necessary defense end and what happens if the court-appointed defense attorney is dismissed?
Necessary defense generally ends with the completion of the respective proceedings, for example with a final judgment or other termination of the criminal proceedings (e.g., dismissal). Dismissal of the court-appointed defense attorney can especially occur if the requirements for necessary defense cease to exist, if the defendant hires a chosen defense attorney, or if the relationship of trust between attorney and client is irreparably disrupted. An application for dismissal can be filed by both sides – the client and the attorney – and the court decides at its own discretion. Once dismissal becomes effective, the mandate ends; if defense is still required, the court usually promptly appoints a new court-appointed defense attorney. After the conclusion of the proceedings, there is no further obligation for necessary defense, so representation also ends, unless new, separate stages of proceedings arise (e.g., reinstatement or appellate proceedings) that again require defense.
What legal remedies are available if the court refuses the necessity of defense?
If, despite the presence of the requirements for necessary defense, the appointment of a court-appointed defense attorney is refused, the accused has various legal remedies. An immediate complaint may be lodged against the refusal according to § 142 (7) StPO. The competent appellate court then examines whether the lower court was correct in rejecting the necessity of defense. A wrongful refusal to appoint a court-appointed defense attorney constitutes an absolute ground for appeal under § 338 No. 5 StPO in the case of a conviction, which leads to the annulment of the judgment. Furthermore, if inadequate defense is objected to, this can also lead to an appeal or retrial if essential procedural rights have been violated.
What are the consequences for the proceedings if the appointment of a court-appointed defense attorney is omitted?
If the court omits to appoint a court-appointed defense attorney despite the requirements for necessary defense being met, this constitutes a serious procedural error. In criminal proceedings, court-appointed defense is a mandatory requirement for effective procedural actions when necessary defense is required. All procedural acts (such as pronouncing the verdict, plea-based case closures, pretrial detention orders) are legally flawed in the absence of defense and can be challenged on appeal. On appeal, the deficiency constitutes an absolute ground for revision, regularly leading to annulment and remittal of the proceedings, regardless of whether the defendant suffered an actual disadvantage. This protective mechanism ensures that the right to defense is mandatorily enforced in all cases prescribed by law.
