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Parent Category: Courts

Created on Tuesday, 25 November 2008 04:25

Last Updated on Wednesday, 13 February 2013 14:15

Defense

You want to know how you should defend yourself at the police or prosecuting authorities? Read here and you will find out.

I haven’t made up my mind if I should employ a lawyer. What sense does it make? I’m sure that I’ll prove my innocence when I tell them my story.

If you intend to employ an attorney, you should do so as early as possible. If your case involves anything more serious than a small traffic violation, we recommend that you retain a German defense attorney. Please consider, a German lawyer is not as active in court as a lawyer in other countries, due to the prominent role of the presiding judge, however your defense counsel will argue your case for you and try to convince the court to interpret the facts and apply the law in your favor.
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How the heck do I find an English-speaking attorney?

The consular officer will, as soon as possible, provide you with a representative list of English-speaking attorneys. However, an attorney cannot be selected for you, nor can legal advice be given.
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A good friend of mine is willing to defend me in court. He has not only the gift of gab, but also even more the gift of persuasion. Will the court accept him as my defense attorney?

Assuming your friend has no legal education as to be shown, than the answer is a clear “no”. In accordance with §137 StPO, you can obtain the services of an attorney at any time during the proceedings. The number of selected defense attorneys may not be more than three. The defense attorney must either be licensed to practice before German courts or be a law professor at a German university (§138 I StPO).
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What function does a judge have here in Germany? Does he just sit back in a comfortable chair and let the attorneys have all the show?

The judge is the person who leads not only the penal proceedings, as soon as it comes to the formal accusation, but also – and especially – the trial. At the oral hearing, all parties in the case must be heard. The taking of evidence (Beweisaufnahme) is managed by the court. A written record must be made of the hearing and the record must be signed by the presiding judge and the official in charge of the records (§§271, 273 StPO).
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I know all the facts of my case. I know I am innocent. The court will decide for me. So do I really need an attorney?

In minor cases, you are free to defend yourself. In more serious cases, a defense attorney is compulsory (§140 StPO). This helps to ensure the rule of law and it protects you as well. These are the kinds of cases in which an attorney is compulsory:

• when the court can sentence you to at least one year in prison,
• when the facts or laws in the case are complicated,
• when you are unable to defend yourself because you have no knowledge of the German language or because you do not understand what is happening / has happened to you.
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The court is urgently garbling something to me that I cannot at all understand. My German is too poor to follow the judge. Do I not have the right to a translator?

Yes, in accordance with the rule of law (§185 I 1 GVG, Art. 20 III, 2 II GG). German courts must make it possible for you to understand why the state prosecutor wants you to be punished. Make sure your attorney applies for the translator. 
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I know all the facts of my case. I know I am innocent. The court will decide for me. So do I really need an attorney?

In minor cases, you are free to defend yourself. In more serious cases, a defense attorney is compulsory (§140 StPO). This helps to ensure the rule of law and it protects you as well. These are the kinds of cases in which an attorney is compulsory:

• when the court can sentence you to at least one year in prison,
• when the facts or laws in the case are complicated,
• when you are unable to defend yourself because you have no knowledge of the German language or because you do not understand what is happening / has happened to you.   
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I just got a letter from court telling me that I am to name my defense attorney or they will appoint one on my behalf. Huh? What’s this all about? I thought it is my decision if take an attorney or not. Must I sometimes have an attorney?

A defense attorney is required in the following cases (§140 StPO): A criminal defense attorney is mandatory in the following cases:

1. If the initial trial will be held at the Landgericht (Regional Court) or Oberlandesgericht (Higher Regional Court);

2. if you are charged with a felony (Verbrechen),

3. if the proceedings may result in withdrawal of a professional license;

4. if the you have been confined for at least three months and has not been released at least two weeks prior to the date of the main trial;

5. if an expert opinion must be prepared regarding your mental condition, which might lead to your admission to a mental institution;

6. if the court orders your admission to a mental or medical treatment facility;

7. if a previously appointed defense attorney is dismissed from the proceedings by a decision of the court;

8. if the severity of the offense or the legal complexities involved make it appear necessary for a fair trial;

9. if it is otherwise obvious that you are not capable of handling your own defense;

10. if your pre-trial detention has exceeded three months.
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I could really use the help of an attorney to defend me in trial but I can’t afford one. Is there any way around this problem.

Sure. If you do not have the funds to pay for a attorney, he may at any time apply to be appointed an attorney by the court. He will not automatically be appointed right away. The application may be made in writing to the office of the public prosecutor, who in turn passes it on to the judge handling the case. The judge then decides on whether or not the requirements have been met for a public defender to be appointed.
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What do I have to show to receive such a court-appointed attorney?

Usually you will only receive one when you meet the requirements of §140 StPO (see above). The costs will be then borne by the German government.
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I’d surely like and need such a court-appointed attorney but how do I get one? I don’t know any lawyers in Germany.

If you do or cannot chose an attorney, the court may appoint an attorney of its choice. Normally, any attorney can be appointed as your defender. Therefore, you may choose an attorney and, if the attorney agrees to defend you on a court appointment basis, he or the attorney may then make an application to the court. If the application is approved, the German courts (Justizkasse) will pay for the court-appointed attorney.
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That sounds intriguing. So, even if I were to be sentenced, I don’t have to pay my attorney. Great news!

Sorry, to interrupt your dreams. In the case you are convicted and sentenced, the Justizkasse will, at the end of the entire proceeding, send a notice to you to pay for all costs incurred, e.g., court costs, costs for the interpreter, the witnesses, translations, and also for the court-appointed attorney. The courts will cover all costs only if you are not convicted, §467 I StPO.
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After having a little "argument" with my court-appointed attorney, I have this strange feeling that he might not come to the trial. If, he does not come to trial, will I then have to defend myself alone?

No! In all cases, where there is an attorney appointed by the court, you must be represented by an attorney. In the case, that your attorney fails to appear at the trial, withdraws prematurely from the trial, or refuses to conduct the defense, the presiding judge must immediately appoint another lawyer (§145 StPO). As an alternative, the court may suspend the trial. If your defense attorney appointed at the trial notes that he requires more time to prepare his defense, the trial must be interrupted or postponed.
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Since I’m in jail, how can I communicate with my attorney? Will they check the correspondence between us?

You have the right to communicate orally and in writing with your defense attorney, whether or not you are under detention. Exchange of correspondence and oral consultations between you and your defense attorney are not subject to censorship by the court or supervision by prison guards. If you get letters from your attorney, keep them out of sight and reach of the police. If they want to look at them, you can protest with the word “Verteidigerpost” (defense attorney mail). This mail is protected by law against seizure (§97 I 2 StPO), but only and as long as the mail is with you. However, correspondence between your consulate and you is not privileged! It is like all other correspondence routed through the investigative judge and, after the trial, through the prison authorities.
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Important Hint:
Have the correspondence with your defense attorney clearly marked with “Verteidigerpost” on the outside of the envelope! Virtually always keep this correspondence in your hands or somewhere else on your body!

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