Definition and legal classification of the chosen defence counsel
Als Chosen Defence Counsel refers in German criminal procedure law to a defence counsel freely appointed by the accused, suspect, or defendant. The chosen defence counsel is contrasted with the appointed counsel (duty counsel), who is appointed by the court pursuant to the legal provisions of § 140 of the Code of Criminal Procedure (StPO) when a case of mandatory defence arises. The selection of the defence counsel is made independently by the client without state assignment.
Legal foundations
Statutory provisions
The activity of the chosen defence counsel is essentially based on the client’s private autonomy. There is no explicit statute regulating the institution of chosen defence counsel. However, its rights and obligations arise from various regulations, especially §§ 137 ff. StPO. The selection and engagement of a defence counsel is a fundamental right in criminal proceedings and is assured by statute in § 137 (1) StPO: “The accused may avail themselves of the assistance of a defence counsel at any stage of the proceedings.”
Distinction from appointed counsel
Unlike appointed counsel, the chosen defence counsel is engaged by a private contract between the client and the lawyer. The assumption of the mandate is on a voluntary basis and usually against a fee. The appointment as chosen defence counsel can occur at any time and is independent of the stage of proceedings. In cases requiring mandatory defence, the chosen defence counsel can be appointed at any time pursuant to § 143 StPO, provided there are no obstacles.
Selection and mandate relationship
Appointment and client relationship
The appointment regularly takes place through the express acceptance of the mandate by the lawyer, whereby a written power of attorney is recommended. The scope of the mandate is determined by individual agreements between the client and the defence counsel. In practice, the mandate covers all defence actions in the investigation and main trial, as well as any appellate proceedings.
Multiple defence and change of counsel
It is permissible for a defendant to be represented by several chosen defence counsels (§ 137 (2) StPO). The client is also free to terminate the mandate relationship at any time and appoint another chosen defence counsel. The same applies to the resignation of the mandate by the defence counsel.
Rights and obligations of the chosen defence counsel
Defence rights
The chosen defence counsel has all procedural defence rights provided by criminal procedural law. These include:
- Right to inspect the files pursuant to § 147 StPO
- Participation in interrogations and the main hearing (§§ 168c, 168d, 230 StPO)
- Right to submit motions, e.g. to propose evidence or file motions to disqualify
- Right to exercise the right to question (§ 240 StPO)
- Right to visit the client in custody (§§ 148, 148a StPO)
Obligations arising from the mandate relationship
The chosen defence counsel is subject to the obligations arising from the civil law contract for services (§§ 611, 675 BGB) towards the client, in particular the diligent and conscientious handling of the defence. In addition, there are obligations of confidentiality and loyalty, as well as the duty to provide comprehensive information and advice to the client.
Limits of activity
The activity of the chosen defence counsel is limited where the Code of Criminal Procedure or other laws intervene or prevent abuse, for example regarding abusive defence practices (§ 138a StPO).
Remuneration and cost bearing
Remuneration agreement
Remuneration is governed by the Lawyers’ Remuneration Act (RVG). It is possible to conclude different fee agreements (flat rates or hourly fees), provided this is legally permissible. Where no agreement is made, the statutory fees of the RVG apply.
Cost reimbursement
In the case of an acquittal or discontinuation of proceedings in favour of the client, there is, pursuant to § 467 StPO, a claim to reimbursement of necessary expenses, including the costs of the chosen defence counsel, from the state treasury. If the client is convicted, the costs of the chosen defence counsel must be borne by the client.
Appointment and exclusion by the court
Exclusion of the defence counsel
A chosen defence counsel may, in exceptional cases, be excluded from the defence of a client by the court, for instance pursuant to § 138a StPO, if substantial reasons argue against their participation (e.g. interference with the administration of justice).
Appointment in cases of mandatory defence
In the case of mandatory defence, a previously engaged chosen defence counsel may be retained in place of an appointed counsel. Should the mandate relationship end during the proceedings, the court can appoint an duty counsel (§ 142 StPO).
Chosen defence counsel in an international context
Other legal systems often have counterparts to the German chosen defence counsel. Here too, the right to freely select a defence counsel is often guaranteed by constitutional law or human rights conventions (for example Art. 6 para. 3 lit. c ECHR).
Significance in practice
Appointing a chosen defence counsel is the method of choice when the accused wishes to influence the selection and individual legal representation. The relationship of trust between client and counsel, as well as the free determination of priorities in the defence strategy, are key aspects of this form of defence.
—Literature reference: Detailed information on the chosen defence counsel can be found especially in textbooks and commentaries on criminal procedure.
Frequently asked questions
Who bears the costs of a chosen defence counsel in criminal proceedings?
In criminal proceedings, the accused or defendant must generally bear the costs for a defence counsel appointed by themselves (chosen defence counsel). This includes both statutory fees per the Lawyers’ Remuneration Act (RVG), as well as any additional fees that may be agreed individually with the lawyer. The costs can be significant and depend on the scope and complexity of the proceedings. In case of acquittal or if proceedings are discontinued, the necessary expenses, which include the costs of the chosen defence counsel, can under certain conditions be imposed on the state treasury (§ 467 StPO). It should be noted, however, that the claim for reimbursement of chosen defence counsel costs is limited and often only covers statutory fees, even if higher fees have been paid. Full reimbursement of the actual costs rarely takes place. In the event of a final conviction, the convicted person generally has to bear the costs themselves. Only in the case of an appointed counsel does the state treasury initially cover the costs, although upon later conviction, these costs may also be reclaimed.
Can a defendant change the chosen defence counsel at any time?
A defendant is generally free to select their defence counsel and may change them during ongoing proceedings. Changing the chosen defence counsel is possible at any time, and even more than once. However, the client remains obliged to pay the fees and costs incurred by the previous lawyer. The new defence counsel may only appear in the proceedings once the court or public prosecutor’s office is in possession of the relevant power of attorney. If there is already an appointed duty counsel, changing is more difficult and requires special reasons, such as a breakdown of trust (§ 143a StPO). In the case of a chosen defence counsel who is appointed freely, this restriction does not apply.
How does the status of a chosen defence counsel differ from an appointed counsel?
The chosen defence counsel is selected and engaged by the accused or defendant themselves, while the appointed counsel is designated by the court when the requirements for mandatory defence (§ 140 StPO) are met. The procedural rights and obligations of both types of counsel are largely identical; they have the same powers in proceedings, especially concerning file inspection, motions for evidence, requests for suspension, or recusal of judges. The main difference lies in the cost issue: the chosen defence counsel is paid directly by the client, while for appointed defence counsel, costs are initially borne by the state treasury, with possible subsequent reimbursement by the convicted person.
Can a chosen defence counsel withdraw from a mandate?
A chosen defence counsel may resign from the mandate for valid reasons, but must observe procedural and professional regulations. The resignation may not be untimely, i.e., not at a critical point in the proceedings when the client would suffer significant disadvantage—such as immediately before a main hearing (§ 138 para. 1 StPO, § 46 BRAO). The client must be given sufficient time to appoint a new defence counsel if necessary. Conversely, the client may terminate the mandate at any time but is required to pay the costs incurred up to that point.
What requirements must be met to engage a chosen defence counsel?
Formally, no special statutory requirements exist for instructing a chosen defence counsel. Any accused, defendant, or even a third party on behalf of the accused can engage a lawyer of their choice as defence counsel with the necessary authority for criminal proceedings. This power of attorney is generally to be granted in writing and evidenced to the law enforcement agencies or the court. The chosen defence counsel must be authorised to practise as a lawyer in Germany, i.e., must be an admitted Rechtsanwalt pursuant to the Federal Lawyers’ Act (BRAO).
What role does the chosen defence counsel have in the investigative proceedings?
In the investigative proceedings, the chosen defence counsel plays a central role, as decisive courses for the further process are set at this early stage. The chosen defence counsel may request access to investigative files, inform the client about the accusations and procedure, and, as part of the defence strategy, enter into early discussions with the investigative authorities. They seek to prevent or mitigate coercive measures—such as searches or pre-trial detention—and may attempt to influence a discontinuation of proceedings under §§ 153 ff. StPO in the client’s favour. Participation in interviews and monitoring of police or prosecutorial actions also falls within their remit.
Can several chosen defence counsels be appointed at the same time?
According to § 137 (2) sentence 1 StPO, a defendant or accused may appoint up to three defence counsels to represent them. This can be particularly purposeful in extensive or complex cases, for example, if several hearing days must be covered simultaneously by different counsels or if special legal and factual expertise is required. Appointing multiple counsel, however, increases the total costs, as fees accrue for each counsel.
What are the consequences of appointing a chosen defence counsel for the proceedings?
The engagement of a chosen defence counsel generally signals that the accused or defendant is actively defending themselves against the charges and is thus exercising their procedural rights in full. The chosen defence counsel can influence the investigation and trial proceedings early, for example, by filing motions, lodging appeals, and overseeing the legality of all state actions. Qualified defence increases the chances of discontinuation of proceedings or acquittal. In addition, legal representation can prevent misunderstandings in contact with authorities and prevent mistakes by the client due to lack of knowledge about their rights and obligations.
