Public defender
court-appointed lawyer
What is a public defender and who chooses one?
You often hear that a public defender is chosen by the court and that’s why he is called court appointed lawyer. However, this is not true. On the contrary: the court must give the person concerned the opportunity to choose a public defender within a certain period of time. Only if you waive your right to choose or do not select a lawyer within the given time will the court choose a public defence lawyer for you. This means that, in principle, you can choose which lawyer will be appointed as your public defender.
Why should you choose your public defender?
If you do not choose your public defender, the judge decides and appoints a lawyer of his choice. Put yourself in the position of a judge, and you will understand why it is so important to choose yourself. If you would be the judge and you can choose any lawyer admitted in the court district. Would you choose a lawyer, who provides a committed and competent defence. Which results into more work for you as judge. Or would you choose the lawyer that is known to advise their clients to confess quickly. In order not to leave the decision to the judge, you should choose your public defender.
It is up to you to choose a committed and experienced public defender. In a football match, you wouldn’t let the opposing team decide who is your goalkeeper.
When do I have the right to a public defence lawyer?
Are you a defendant in criminal proceedings? Then you automatically have the right to a defence lawyer. You are even free to appoint up to three defence lawyers (so-called defence lawyers of your choice). However, you must bear the costs for your defence lawyer yourself.
If there is a case of so-called necessary defence, you have the right to a public defender. The costs for your public defence lawyer are initially borne by the state treasury. So if you do not appoint a defence lawyer of your choice, but there is a case of necessary defence, you have the right to a public defender.
Cases of mandatory defence
According to Section 140 of the German Code of Criminal Procedure (Strafprozessordnung, StPO) the assistance of defence counsel is mandatory if:
- It is expected that the main hearing at first instance will be held at a higher regional court, regional court or court with lay judges (“Schöffengericht”);
- The accused is charged with a serious criminal offence (e.g. robbery, murder or rape);
- The proceedings may result in an order prohibiting the exercise of a profession;
- The accused is under arrest;
- The severity of the offence, the severity of the anticipated legal consequence or owing to the difficult;
- Factual or legal situation, make the assistance of defence counsel necessary;
- It is evident that the accused is unable to defend himself or herself.
Costs for a public defender
Unlike legal aid in civil law, the court will pay the fee for your court appointed lawyer regardless of your income and financial status. Only in the event of a conviction will the court generally determine that you have to bear the fees of your public defender.
