Court-appointed defence lawyer in Germany: who pays?

§ 140 Abs. 1 StPO names eleven situations. A case of mandatory defence exists where

1. 01it is to be expected that the main hearing at first instance will take place before the Oberlandesgericht, the Landgericht or the Schöffengericht;
2. 02the accused person is charged with a Verbrechen;
3. 03the proceedings may lead to a ban on practising a profession;
4. 04the accused person is to be brought before a court under §§ 115, 115a, 128 Abs. 1 oder § 129 StPO for a decision on detention or provisional placement;
5. 05they are held in an institution on the basis of a judicial order or with judicial approval;
6. 06their placement under § 81 StPO comes into consideration in order to prepare an expert opinion on their mental condition;
7. 07it is to be expected that separate proceedings for a measure of correction and prevention will be conducted;
8. 08the previous defence lawyer has been excluded from taking part by a decision;
9. 09a lawyer has been assigned to the injured person under §§ 397a und 406h Abs. 3 und 4 StPO;
10. 10at a judicial examination, the involvement of a defence lawyer appears necessary, on account of the significance of the examination, in order to safeguard the rights of the accused person;
11. 11an accused person with a visual, hearing or speech impairment applies for the appointment.

Alongside this stands the residual rule in § 140 Abs. 2 StPO. A case of mandatory defence also exists where, because of the seriousness of the offence, the seriousness of the legal consequence to be expected or the difficulty of the factual or legal position, the involvement of a defence lawyer appears necessary, or where it is apparent that the accused person cannot defend themselves. In practice, many applications are based on this provision.

In youth criminal proceedings, § 68 JGG applies in addition and provides for its own cases of mandatory defence.

Largely, yes. § 142 Abs. 5 StPO provides: before a Pflichtverteidiger is appointed, the accused person is to be given the opportunity to name a defence lawyer within a period to be set. A defence lawyer named within that period is to be appointed unless an important reason stands in the way; an important reason also exists where the defence lawyer is not available, or not available in time.

In practice this means: anyone who wants to name a lawyer they trust should do so early and not wait until the court appoints someone of its own motion. Before charges are preferred, the application is made to the authorities or officers of the police service or to the Staatsanwaltschaft (the public prosecution office); it is then submitted to the court by the Staatsanwaltschaft, together with its own comments. After charges have been preferred, the application is to be made to the competent court (§ 142 Abs. 1 StPO).

Here is the chain that is easily short-circuited in everyday accounts.

First step. The Pflichtverteidiger is a lawyer who has otherwise been appointed or assigned by a court. They receive their remuneration from the Land treasury where a court of the Land appointed or assigned them, and otherwise from the federal treasury (§ 45 Abs. 3 RVG). Subsection 1 of the provision, by contrast, concerns assignment by way of legal aid in civil matters and does not apply here.

Second step. The costs of the proceedings are, under § 464a Abs. 1 Satz 1 StPO, the fees and expenses of the public purse. The sums payable to lawyers are among the court expenses; they appear as number 9007 in the schedule of costs in Annex 1 to the Court Fees Act, Part 9 (expenses). Where the defendant is convicted, they have to bear the costs of the proceedings under § 465 Abs. 1 StPO in so far as those costs arose from the proceedings concerning an offence of which they are convicted. The public purse therefore pays in advance.

Third step. § 52 Abs. 1 RVG additionally gives the court-appointed lawyer a claim of their own: they may require the accused person to pay the fees of a chosen defence lawyer, but may not demand an advance. The claim lapses in so far as the public purse has paid fees. Under § 52 Abs. 2 RVG it can be asserted only in so far as the accused person has a claim for reimbursement against the public purse, or the court of first instance finds, on the application of the defence lawyer, that they are in a position to pay, or to pay in instalments, without impairing the maintenance necessary for themselves and their family. On such an application the court sets the accused person a period in which to set out their personal and financial circumstances. If they make no statement within that period, it is presumed under § 52 Abs. 3 RVG that they are able to pay. A letter of that kind should therefore not be left lying.

The statement "a Pflichtverteidiger is free of charge" is therefore wrong. What is correct is: the costs do not fall on the accused person to begin with, and whether they end up with them is decided by the outcome of the proceedings and by their financial circumstances.

Those who are acquitted are in a different position. Under § 467 Abs. 1 StPO, on an acquittal, on a refusal to open the main proceedings or on a discontinuation, the expenses of the public purse and the necessary expenses of the accused person are borne by the public purse. For appeals, § 473 Abs. 1 StPO applies: the costs of an appeal that is withdrawn or unsuccessful fall on the person who lodged it. The costs decision itself is made under § 464 Abs. 1 und Abs. 2 StPO in the concluding decision and can be challenged under § 464 Abs. 3 StPO by way of sofortige Beschwerde.

How the remuneration of a defence is structured, and which costs arise at which stage of the proceedings, is explained under Fees.