How are defense and law enforcement different?

The defense attorney in criminal proceedings

1. Types of Defense

From § 137 StPO it follows that the accused himself in every stage of the procedure the assistance of a defense counsel. As we have just seen, the accused must be informed of this during his first interrogation in accordance with Section 136 of the Code of Criminal Procedure. In principle, the accused may also appoint several defense counsel, whereby the number is stated in accordance with Section 137 (1) sentence 2 StPO three defense lawyers is limited. If he independently appoints a defense attorney, one speaks of one "Election defense".

According to § 140 StPO there are cases in which the participation of a defense lawyer is necessary. In these cases there is a "Necessary defense" in front. In all cases not listed there, e.g. especially simple procedures before the Local courts, the accused can in principle defend himself. If the accused is unable to pay a defense attorney in the case of the necessary defense, he will be charged ex officio according to § 141 StPO the so-called. Public defender assigned. The appointment is made by the chairman of the court with which the matter is either pending or with which it is to be made pending, see Section 141 (4) StPO. The order is placed at the latest in the interim procedure ("As soon as he has been asked to explain the indictment in accordance with Section 201",Section 141 (1) of the Code of Criminal Procedure).

The Number of public defenders is not limited to 3 by law, as Section 137 (1) sentence 2 StPO only applies to the defense counsel. By doing NSU procedure Against Beate Zschäpe, the defendant was assigned a fourth public defender after a long time, after the defendant had previously submitted an application for the release of the previous defense counsel, which was refused. The appointment of an additional defense attorney was intended to ensure the effective defense of the accused.

Video: The defense attorney in the criminal trial


2. Position of the defender

The defense attorney is supposed to Equality of arms between the state law enforcement agencies and the accused, who is usually ignorant of the possibilities of criminal proceedings.

To Hm. However, the defense counsel is not - as in civil law, for example - the representative, but the Assistance to the accused. This arises from the fact that the defender according to § 1 BRAO also Organ of administration of justice and as such also serves the public interest in ensuring the rule of law prosecution.

Beulke / Swoboda Criminal Procedure Law Rn. 150; BVerfG NJW 1998, 296.

The defense attorney is linked to the accused on the basis of a contract under private law (agency agreement § 675 BGB). Nevertheless, he is due to his above-mentioned position independent of the accused. This means that he can also submit evidence against the will of the accused or plead for acquittal. The only thing he is not allowed to do is appeal regardless of the will of the accused.

Beulke / Swoboda Criminal procedural law marginal 152. Does the defense attorney practice with the Electoral defense If the accused exercises his or her rights against the will of the accused, it is possible to terminate the contractual relationship. Since this is a contract with a special position of trust in accordance with § 627 BGB, termination is possible at any time and without reason.

A Delivery of a public defender is not expressly regulated in the law. Section 143 of the Code of Criminal Procedure only regulates the withdrawal of the appointment of a public defender in the event that a solicitor should take over. Nevertheless, it is recognized that a withdrawal analogous§ 143 StPO is permissible if there are circumstances, "... the purpose of the appointment of a defense attorney, to secure suitable support for the accused and to ensure the orderly course of the proceedings, seriously (endanger). This (is) especially the case if that Relationship of trust between the accused. and the appointed defense attorney finally and permanently shaken and therefore to be concerned (is), that the defense can no longer objectively be conducted properly (can). The (is) from the standpoint of a reasonable and discerning connoisseur. to judge. "

Munich Higher Regional Court 7 St 7/14, FD-StrafR 2015, 371363 or BeckRS 2015, 03800; BVerfGE 39, 238.

As an organ of the administration of justice, the defense counsel fundamentally committed to the truth. On the other hand, § 203 StGB results in a Confidentialitywhich means that the defense attorney is not allowed to reveal incriminating circumstances without the consent of his client. The observance of these two duties and the resulting tension is important for the assessment of the question of when the criminal defense attorney according to § 258 StGB punishable makes.

Basically it applies that the use of all criminal procedural possibilities without penalty have to be. However, if the defense counsel actively counteracts his duty to be truthful, then he makes himself liable to prosecution according to § 258 StGB.

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The newly admitted criminal defense lawyer S would like to start his career with an acquittal of his client M, who is accused of bodily harm, in order to gain a good reputation in the milieu. Since the evidence is overwhelming, he first explains to M that he should be properly dressed for the main hearing and that he should never open his mouth. In addition, he and M consider whether a “witness” could be found who can provide him with a solid alibi. Both come to the conclusion that the mother is best suited for this. S then goes to M and explains that she owes this to her son. M then made a convincing false statement in the main hearing, which is why the court acquitted M. Did S commit a criminal offense according to § 258 StGB?

The reference to the right to refuse to testify in the main hearing constitutes a permissible defense act and thus does not prevent punishment according to § 258 StGB. In contrast, inciting the mother to make false statements: here S has actively intervened in the establishment of the truth and therefore both according to § 258 StGB as also made punishable according to §§ 153, 26 StGB.

3. Defender's Rights

Defense counsel has various important rights in criminal proceedings. These include:

a) The right of attendance

According to Section 163a Paragraph 3 Sentence 2 in conjunction with 168c para. 1 and2 StPO the right, also in the preliminary investigation at judicial interrogations of the accused and of witnesses as well as at Interrogations by the public prosecutor's office and recently also at Police interrogations, § 163a Abs. 4 S. 3 StPO to be present.

b) Right of contact

From § 148 StPO it can be inferred that the accused, even if he is not at large, written and oral communication is permitted with the defense attorney. From the fair trial principle (Art. 6 ECHR) it follows that this traffic free from government supervision has to be done. In this respect, one speaks of a confidentiality guarantee.

ECHR NJW 2007, 3409. A restriction of the right of contact is only possible according to § 148 Abs. 2 StPO if the accused is suspected of a terrorist offense according to § 129a StGB.

c) Right to inspect files

From § 147 StPO it follows that only the defense counsel, not the accused, has a right to inspect the files. From §§ 147 Abs. 2, 169a StPO, however, it follows that this right can be denied in the investigation procedure if the investigation has not yet been concluded and the granting of access to the files would jeopardize the success of the investigation.

d) The right to apply for evidence, to ask questions and to speak