Throughout your studies, you will encounter criminal procedure law, which is regulated by the Code of Criminal Procedure (StPO). One problem is the appointment of a public defender.
A public defender is appointed by the court to protect the defendant’s procedural rights. The grounds for the award of a public defender can be found in § 140 StPO.
But when can an assigned public defender be replaced? The Federal Court of Justice (StB 35/22) had to address this issue in its decision of August 25, 2022.
In the present case, the defendant was assigned a public defender available on only 7 of the 15 main hearing dates. As a result, the president of the Criminal Senate in charge of the matter relieved him of his duties and appointed another public defender.
The defendant’s immediate appeal against this decision was unsuccessful. While admissible, it was essentially unfounded. In accordance with article 143a paragraph 2 sentence 1 no. The will of the defendant is irrelevant.
According to the principles elaborated by jurisprudence, the replacement of the official defender can be considered even if, due to external circumstances beyond his control, he is unable to ensure an adequate defense of the accused. This is to ensure the smooth running of the proceedings, which is subject to the expedited requirement that the progress of a detention case may at least not be significantly delayed.
In the event of substitution due to expiry, it is also important that the presiding judge gets in touch with the public defender and makes a serious attempt to satisfy the defendant’s claim to be defended by the defender of his choice. However, the president also has a certain margin of discretion, so that the release of the appointed public defender is not contestable.
Attorney Steffen Dietrich, criminal lawyer from Berlin-Kreuzberg
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