Official Defender
The term ‘Official Defender’ refers to a defense lawyer in German criminal procedure law who is not chosen by the accused, but appointed by the court. The appointment of an Official Defender takes place within the framework of what is known as necessary defense and serves to protect a fair criminal process and to ensure effective legal protection under criminal law. Below, the legal basis, prerequisites, rights and obligations, as well as distinctions from other forms of defense are explained in detail.
Legal Basis
Statutory Regulation
The appointment and activities of the Official Defender are anchored in the German Code of Criminal Procedure (StPO), in particular in §§ 140 to 143a StPO. The statutory provisions specify under what conditions an accused has a right to necessary defense and who can be appointed as Official Defender.
Objective
The appointment of an Official Defender is intended to ensure that even less legally knowledgeable or particularly vulnerable accused persons receive appropriate defense in criminal proceedings and are not disadvantaged due to a lack of defense competence. This fulfills the requirement for a fair process and equality in criminal procedure.
Prerequisites for Appointment
Necessary Defense (§ 140 StPO)
An Official Defender is appointed if what is referred to as necessary defense exists. The law lists, for example, the following cases:
- Accusation of a felony (§ 140 Abs. 1 No. 2 StPO)
- Pre-trial detention of the accused (§ 140 Abs. 1 No. 4 StPO)
- Security proceedings (§ 140 Abs. 1 No. 5 StPO)
- Proceedings before the Regional Court and the Higher Regional Court (§ 140 Abs. 1 No. 1 StPO)
- Particularly serious criminal offenses or complex factual and legal situations
Additionally, an appointment can occur if it is evident that the accused cannot adequately defend themselves (§ 140 Abs. 2 StPO).
Recipient of Appointment
The appointment takes place when the accused does not have a freely selected defense lawyer, waives their defense, or the defense lawyer is not willing or able to take on the mandate.
Appointment in cases of particular vulnerability
For particularly vulnerable persons, such as juveniles in juvenile criminal proceedings (§ 68 JGG), the appointment of an Official Defender is regularly required by law.
Selection and Appointment of the Official Defender
Selection Procedure
The competent court selects the Official Defender. It can take into account the wishes of the accused as long as there are no compelling reasons to the contrary (§ 142 StPO). If the accused does not name a defense lawyer after being informed by the court, the court selects one ex officio.
Requirements for Appointment
Any person who is authorized to provide a defense under § 138 StPO can be appointed. The defense lawyer must be independent and capable of providing a proper defense.
Termination of Appointment
The appointment ends upon completion of the proceedings or if the requirements for necessary defense cease to exist. De-release from the mandate is also possible upon application by the defense lawyer or the accused for important reasons.
Rights and Duties of the Official Defender
Rights
- Access to case files: The Official Defender has an unrestricted right to inspect the case files (§ 147 StPO).
- Attendance: He or she is entitled to participate in all essential procedural actions, particularly during interrogations and the main hearing.
- Filing motions: He or she can file procedural motions, submit requests for evidence, and choose defense strategies.
Duties
- Duty of competent defense: The Official Defender is obligated to protect the interests of the accused to the best of their ability.
- Confidentiality: He or she is subject to the duty of confidentiality regarding all knowledge obtained in the course of the mandate.
- Duty of care: The defense must be conducted diligently.
Special Liability
The activities of the Official Defender are subject to the same professional liability standards as other defense lawyers. Misconduct can result in disciplinary and civil liability consequences.
Remuneration of the Official Defender
Schedule of Fees
Remuneration is governed by the Lawyers’ Remuneration Act (RVG). The costs are generally covered by the state treasury.
Reimbursement
In the event of an acquittal or discontinuation of proceedings, the costs can, if applicable, be imposed on the state, or in the case of a conviction, on the accused.
Distinction from Other Types of Defense Lawyers
Mandatory Defense Lawyer
The term Official Defender is, in legal practice, usually used synonymously with court-appointed defense lawyer (Mandatory Defense Lawyer). Both terms refer to a defense lawyer appointed by the court in cases of necessary defense.
Chosen Defense Lawyer
In contrast to the Official Defender, the chosen defense lawyer is selected and appointed by the accused themselves. A change from Official Defender to chosen defense lawyer is possible at any time, provided a chosen defense lawyer is named and mandated.
Significance in Criminal Proceedings
The Official Defender plays a crucial role in safeguarding the procedural rights of an accused. Their appointment is of central importance, especially in complex, serious, or lengthy proceedings. It guarantees a fair and constitutional procedure and protects particularly vulnerable individuals from being overwhelmed by the criminal justice system.
Literature and Further Information
- Code of Criminal Procedure (StPO), especially §§ 140 ff.
- Lawyers’ Remuneration Act (RVG)
- Juvenile Courts Act (JGG)
- Federal Court of Justice case law on necessary defense
In summary, the Official Defender is a central element in ensuring fairness in German criminal proceedings and serves to protect the defense rights of the accused, particularly in proceedings where self-defense cannot be sufficiently assured.
Frequently Asked Questions
How is an Official Defender appointed?
The appointment of an Official Defender is made by the competent court within the framework of necessary defense pursuant to §§ 140 ff. StPO (Code of Criminal Procedure). Necessary defense exists, for example, in cases of felonies, major crimes, or when the defendant cannot defend themselves—such as due to personal and financial circumstances or lack of legal competence. The court appoints a defense lawyer ex officio, i.e., independent of the accused’s wishes, if no chosen defense lawyer is available or if the accused cannot afford a lawyer. The appointed lawyer is obligated to accept the mandate, unless there are serious reasons for refusal. The aim of this provision is to safeguard the right to a fair trial, in particular the right to defense.
What rights and duties does an Official Defender have?
An Official Defender essentially has the same rights as a chosen defense lawyer (§ 137 StPO). This includes in particular the right to inspect the case files, the possibility to file requests for evidence, to participate in interrogations, and to file appeals on behalf of the client. The mandate also obligates the defender to maintain confidentiality as well as to provide comprehensive and loyal defense of the client. They are obligated to safeguard their client’s interests with due care and competence, regardless of whether they are appointed by the court or privately hired. In addition, the Official Defender has a duty to be present at main hearings and must ensure in particular that all procedural rights of the accused are preserved.
Does the accused have a right to choose their Official Defender?
In principle, the accused can suggest a specific defense lawyer under § 142 StPO. The court is expected to comply with this wish unless there are significant reasons to the contrary, such as availability or conflicts of interest. If the accused does not make a suggestion, or if the suggested person is unavailable or unsuitable, the court appoints a defense lawyer from the list of local attorneys. However, there is no general right to a specific Official Defender; the court has discretionary power, which is especially intended to ensure the speedy progress of the proceedings.
Who bears the costs for an Official Defender?
The costs of an Official Defender are initially borne by the state treasury. After the proceedings are concluded, in the event of a conviction, the defendant can be recouped by the state (§ 465 StPO). If the defendant is acquitted or the proceedings are discontinued, the state treasury remains responsible for the costs. In contrast to chosen defense, where the client pays the costs directly, the remuneration of the Official Defender is determined by the Lawyers’ Remuneration Act (RVG), applying statutorily fixed fees.
Can an Official Defender be rejected or dismissed?
Rejection or dismissal of an Official Defender is possible only under narrow conditions, such as conflicts of interest pursuant to § 138a StPO, gross breach of duty, or sustained loss of trust. A merely uncomfortable relationship between the defendant and the defense lawyer is not sufficient. A change generally occurs by court decision. The defendant can at any time appoint their own chosen defense lawyer at their own expense; the Official Defender is then released from the mandate.
Does the obligation of an Official Defender apply to all instances?
The appointment of an Official Defender generally extends to all instances, i.e., to the investigation phase, the main trial, and to legal remedies proceedings including appeals and revisions, provided that the prerequisites for necessary defense continue to exist. If, for certain reasons, the mandatory defense ends (e.g., by resignation of the mandate or cessation of necessary defense), the mandate can be terminated; otherwise, the defense lawyer remains appointed until the proceeding’s full completion.
What are the consequences if an Official Defender is not appointed in cases of necessary defense?
If, in cases of necessary defense, no Official Defender is appointed or the defendant is not sufficiently defended, this constitutes a significant procedural error that can lead to the annulment of a judgment (§ 140 Abs. 1 StPO in conjunction with § 338 No. 5 StPO). The resulting judgment is generally to be regarded as legally flawed and, upon proper objection by the defense in appellate proceedings, must be set aside or the proceedings must be remitted. These strict requirements serve to protect the right to a fair procedure and to ensure correct administration of criminal justice.
