Who is a defender

NRW Justice: The Defender

The accused can seek advice from a criminal defense attorney at any stage of the procedure, including during the preliminary investigation. However, the following remarks refer primarily to the main proceedings.

What types of defenders are there?

A distinction is made between public defenders and defenders. Public defenders are appointed by the court and put to the side of the accused. The defense counsel, on the other hand, is a lawyer chosen by the defendant himself, whom the defendant authorizes with a written power of attorney to defend him in criminal proceedings. However, the defendant is not obliged to seek defense counsel. Rather, he can appear in court without a defense attorney, for example to save costs. In certain cases, however, the law requires that the defendant be defended by a qualified defense attorney. In this respect, one speaks of necessary defense. In these cases, the court appoints a public defender, provided that the defendant has not yet sought a solicitor. These are cases in which the defendant is charged with serious criminal charges or the proceedings can lead to heavily onerous sanctions. The most important cases are:

  • The accused is charged with a crime
  • The criminal proceedings can lead to a professional ban
  • The accused has been in an institution for at least three months on the basis of a judicial order or with judicial approval and is not released at least two weeks before the start of the main hearing
  • Preparation of an expert opinion on the psychological state of the accused
  • If the gravity of the act or the difficulty of the factual or legal situation so dictates
  • When it is evident that the accused cannot defend himself

If the court has assigned a public defender to the defendant, the defendant is not deprived of the opportunity to appoint a lawyer himself to take over the defense. In this case, the court cancels the appointment of the public defender.

What are the duties of the defense attorney?

In principle, the appointment of defense counsel applies to the entire criminal proceedings. However, it can also be restricted to just one instance. Within the scope of this possible time restriction, the defense lawyer has the following tasks:

First and foremost, the defense attorney should advise the defendant. He should comprehensively exercise the rights of the accused and induce them to take procedurally correct or wise correct actions and explanations. In the context of this position, the defense attorney is obliged to exclusively For to use the accused.

The defense counsel also exercises a control function vis-à-vis the court. He must ensure that all aspects exonerating the accused are adequately taken into account and that the procedural rules are observed. The defense counsel is therefore also to be understood as an organ responsible for the administration of justice. In this function, he serves the purpose of establishing the truth and is responsible for ensuring that the course of the procedure is appropriate and procedural. In order for the defense attorney to be able to do justice to these tasks, he has an unlimited right according to § 147 StPO Access to files to.

However, the defense attorney does not replace the defendant. So even if a defense attorney is involved, the defendant must appear at the hearing himself. The defense attorney is only part of the defendant, not his representative.

What rights does the defense attorney have?

The defense attorney is entitled to all acts that serve to protect and defend the accused. The defense counsel finds his limits when he complies with the offense of preventing punishment, i.e. when the defense counsel actively obscures or distorts the facts, falsifies evidence or knowingly uses falsified evidence. The same applies if the defense attorney warned the accused of an imminent arrest. However, the defense counsel is not prevented from defending and applying for an acquittal, even if the accused confessed to him that he had committed the offense in a confidential conversation.

Defender's rights can be summarized as follows:

  • Right to submit applications, in particular applications for evidence
  • Right to ask questions to the accused, witnesses and experts
  • Right to be present at all stages of the procedure, including on-site visits outside the court
  • Right to make statements and statements on behalf of the accused
  • Right to object to questions put to witnesses or the accused by other parties to the proceedings

After the end of the taking of evidence, if the public prosecutor has finished his closing presentation, the defense attorney has to make his pleading. This summarizes the result of the main hearing once again, evaluates all the circumstances discussed in factual and legal terms and finally contains an application to the court as to how it should decide from the point of view of the defense.