Concept and Significance of Necessary Defense
The term necessary defense refers in German criminal procedural law to situations in which the court is required by law to appoint a defense attorney for the accused or defendant. This so-called mandatory defense is legally regulated and aims to ensure the participation of a defense counsel in criminal proceedings when certain conditions are met. The objective is to guarantee the right to a fair trial and the protection of fundamental procedural rights.
Legal Foundations of Necessary Defense
Provisions in the Code of Criminal Procedure
The legal provisions concerning necessary defense are mainly found in §§ 140 through 143a of the Code of Criminal Procedure (StPO):
- Section 140 StPO defines the situations in which the participation of a defense attorney is strictly required.
- Section 141 StPO regulates the appointment of a defense counsel by the court.
- Section 142 StPO addresses the revocation of the mandatory defense appointment as well as the change of the mandatory defense counsel.
- Section 143 StPO und Section 143a StPO cover additional provisions for the appointment and continuation of mandatory defense.
European and Constitutional Influences
In addition to national law, the structure of necessary defense is also influenced by provisions of the European Convention on Human Rights (especially Art. 6 ECHR) and the Basic Law (especially Art. 2 para. 1 GG in conjunction with the rule of law principle). They safeguard the right to a fair trial and effective defense.
Requirements for Necessary Defense
The Code of Criminal Procedure distinguishes two main categories of cases where necessary defense applies:
Absolute grounds (§ 140 para. 1 StPO)
In these cases, the appointment of a defense counsel is mandatory. These include, among others:
- Seriousness of the offense: For crimes or misdemeanors with an anticipated severe penalty (e.g., in cases of pre-trial detention or placement under § 81 StPO).
- Criminal proceedings before the Regional Court or Higher Regional Court.
- Appeal hearings and revision hearings.
- Placement in a psychiatric hospital or a detoxification facility.
- When a security procedure is conducted.
Relative grounds (§ 140 para. 2 StPO)
Here, the decision to appoint a defense counsel is at the discretion of the court if, due to the seriousness of the offense or the complexity of the factual or legal issues, the involvement of a defense counsel seems necessary, or if it is clear that the accused cannot defend themself.Criteria:
- Complexity of factual and legal issues (e.g., in extensive proceedings or difficult issues of proof)
- Serious consequences of the offense (e.g., significant sanctions, impact on future life)
- Impaired ability to defend oneself (e.g., in the case of minors or mentally impaired defendants)
Process and Procedure of Mandatory Defense
Appointment of the Mandatory Defense Counsel
If the court concludes that necessary defense is required, a defense counsel will be appointed for the accused unless they have already chosen one themselves. The accused may generally propose a person for this role. The court generally follows this wish unless there are grounds for rejection.
Rights and Duties of the Mandatory Defense Counsel
The appointed mandatory defense counsel has the same rights and duties as any other defense counsel, especially the right to inspect files and to be present during all stages of the proceedings. In the case of mandatory defense, the state treasury initially covers the defense counsel’s costs, but under certain conditions, these may later be imposed on the convicted person.
Change and Discharge of the Mandatory Defense Counsel
The accused can dismiss a previously appointed mandatory defense counsel informally or request a change under certain conditions. Such changes are permitted especially in case of a disturbed relationship of trust or for important reasons, such as conflicts of interest.
Distinction: Necessary Defense and Chosen Defense Counsel
Differences
- necessary defense: Here, defense is prescribed by law; the participation of a defense counsel is mandatory.
- Chosen defense counsel: The accused independently chooses a defense counsel, provided there is no obligation for court appointment.
The mandatory defense counsel is only appointed if no chosen defense counsel takes on the case or the chosen defense counsel withdraws.
Cost Consequences
In mandatory defense cases, the state treasury primarily pays the fee. Reimbursement from the accused can occur if the person is convicted and is able to pay. The costs of a chosen defense counsel, however, are borne by the defendant themself.
Practical Importance and Legal Protection
Ensuring a Fair Trial
Necessary defense ensures that the accused can be effectively defended even in complex proceedings. It reflects the principle of a fair trial and ensures that inexperienced or vulnerable individuals are not disadvantaged in criminal proceedings.
Legal Remedies
Decisions regarding the appointment or refusal of a mandatory defense counsel may be challenged immediately by appeal. If necessary defense is not provided in time, this may result in the judgment being set aside.
Additional Aspects of Necessary Defense
Scope of Application in Juvenile Criminal Law
In juvenile criminal law (§ 68 JGG), additional rules apply that require the involvement of a defense counsel in certain cases (e.g., pre-trial detention, placement, complex factual and legal situations).
International Standards
International minimum standards (example: Directive (EU) 2016/1919 on legal aid in criminal matters) have also influenced the design of necessary defense in German criminal law.
Summary and Significance in Practice
Necessary defense is a central element of German criminal procedural law and serves to ensure a fair and law-based criminal process. It protects the accused from being overburdened and from perception deficits in the complex criminal process, safeguarding fundamental procedural rights and implementing national and international standards for the rule of law. The regulations on necessary defense establish a minimum standard for criminal defense and are essential for the functioning of the justice system.
Frequently Asked Questions
When does a case of necessary defense according to § 140 StPO exist?
A case of necessary defense always exists if the Code of Criminal Procedure in § 140 StPO deems certain conditions fulfilled, requiring that the accused cannot or should not defend themself in the criminal proceedings, but must instead have a defense counsel appointed. This applies, for example, to cases in which a crime is alleged, i.e., an offense punishable by at least one year of imprisonment. Necessary defense is also required if the case leads to a main hearing before the Regional Court or Higher Regional Court. Furthermore, mandatory defense exists if pre-trial detention, placement, or provisional withdrawal of driving privileges has been ordered against the accused, if the defendant is held in an institution for at least three months by judicial order and the main hearing will probably not take place before this period elapses, or if it is apparent that the case is complex or the accused cannot defend themself. The question of necessary defense is crucial to the entire proceedings, as an improper waiver of a mandatory defense counsel can render the criminal proceedings unlawful.
Can the accused waive the appointment of a mandatory defense counsel?
The accused cannot waive the appointment of a mandatory defense counsel if the requirements for necessary defense under § 140 StPO are met. In such cases, the law mandates that a defense counsel must be appointed to the accused, regardless of whether the accused wants to participate or expressly rejects it. The court is obliged ex officio to ensure that the accused’s right to a fair trial is maintained, which necessarily includes appointment of a defense counsel in certain circumstances. This protection mechanism serves to uphold the rights of the accused and to guarantee a law-based procedure.
What costs arise with a mandatory defense counsel and who bears them?
The costs of the mandatory defense counsel are initially paid by the state treasury, regardless of the accused’s financial situation. If the accused is convicted, however, the court may later order the accused to cover the costs of the defense. In the event of an acquittal, the costs remain with the state treasury. The remuneration of the mandatory defense counsel is determined by the Lawyers’ Remuneration Act (RVG) and is generally lower than that of a chosen defense counsel. However, the accused may subsequently retain the mandatory defense counsel as a chosen defense counsel, which would then be remunerated separately.
Can the accused freely choose their mandatory defense counsel?
In principle, the accused has the right to nominate a defense counsel of their choice to be appointed as a mandatory defense counsel, provided there are no significant grounds against it, such as a conflict of interest or lack of availability. The court is generally bound to the accused’s proposal but may reject it if the appointment would disproportionately delay the proceedings or if the defense counsel lacks the necessary admission. If the accused does not exercise their right of nomination, the court appoints the mandatory defense counsel from the local bar.
Under what circumstances can a mandatory defense counsel be replaced?
A change of the mandatory defense counsel is generally possible, but only for important reasons. Such a reason may exist if the relationship of trust between the accused and the defense counsel is fundamentally disturbed or if the defense counsel is objectively unable to provide appropriate defense. The accused must file a corresponding application with the court and state the reasons in detail. The court will then examine whether the requirements for a change are met. Mere general dissatisfaction with the defense counsel is usually not sufficient.
Is a mandatory defense counsel required to act even against the will of the accused?
By order of the court, the mandatory defense counsel is required to undertake the defense of the accused, regardless of whether the accused wishes this or not. The protection of the accused and the right to a law-based procedure are paramount. Even if the accused does not cooperate or explicitly opposes the mandatory defense counsel, the counsel must safeguard the accused’s interests within the scope of the mandate and ensure adequate defense.
What role does necessary defense play in appeal proceedings?
Necessary defense also plays a significant role in appeal (revision) proceedings. If there was already a case of necessary defense in the main instance, or if relevant legal questions arise in the appeal instance, the defendant must also be provided with a defense counsel in the appeal proceedings. The need for defense thus extends through all stages of the proceedings, including any legal remedies. Failure to do so may result in the judgment being set aside due to a violation of the accused’s procedural rights.
