Court-appointed and private defense in criminal proceedings

The Schweinfurt Regional Court ruled on October 7, 2025, that the necessity of legal representation pursuant to Section 140 Paragraph 2 of the German Code of Criminal Procedure (StPO) can be justified solely by the severity of the alleged offense, regardless of the expected legal consequences. The defendant in the proceedings was charged with negligent homicide of his two children. There were indications that, due to the exceptional circumstances of the charges and the resulting deaths of his two children, the defendant was unable to fully and appropriately address the criminal charges, in addition to coping with at least the moral responsibility for their deaths and the associated feelings of loss and guilt. This justified the appointment of a public defender.

The Magdeburg Regional Court ruled on June 25, 2025, regarding the retroactive appointment of a court-appointed defense attorney under certain conditions. The former defendant's application for such an appointment had previously been rejected. This rejection was deemed inadmissible because, at the time of the application, grounds for appointment existed under Section 140 Paragraph 2 of the German Code of Criminal Procedure (StPO), as the defendant, due to numerous prior convictions and the seriousness of the charges, faced a prison sentence of at least one year. The court determined that a retroactive appointment of a court-appointed defense attorney is permissible only in exceptional circumstances, provided the defendant had expressly applied for such an appointment in a timely manner. For this to apply, the prerequisites for the appointment of a court-appointed defense attorney must have been met at the time of application, and a decision on the application need not have been made without compelling reason.

The Braunschweig Regional Court, in its decision of June 18, 2025, determined the circumstances under which a case is considered complex. The appellant's application for the appointment of a public defender had previously been rejected on the grounds that the requirements of Section 140 Paragraph 2 of the German Code of Criminal Procedure (StPO) were not met. However, a complex case exists when all witnesses, as police officers, have access to transcripts of previous interrogations and can therefore prepare their testimony to a greater extent than other witnesses, and when clarifying any inconsistencies in the statements requires knowledge of the entire case file, which is only possible for a lawyer. Consequently, a public defender was appointed for the appellant.

The Bremen Regional Court ruled on June 4, 2025, that the appointment of a public defender was necessary due to the complexity of the factual and legal issues in the case. The defendant was charged with possession of child and youth pornography. Due to overriding legitimate interests of third parties, the defendant was not permitted, pursuant to Section 147 Paragraph 1 Sentence 1 of the German Code of Criminal Procedure (StPO), to independently review the incriminating documents. To ensure an effective defense, it was therefore necessary to appoint a public defender for the accused, who could review the images and videos and inform the defendant accordingly. The public prosecutor's office filed an immediate appeal against this decision, which was dismissed as unfounded.

In its decision of April 16, 2025, the Passau Regional Court concluded that, in light of the severity of the expected legal consequences, all other legal consequences that could be ordered in the relevant criminal proceedings, in addition to the sentence, must be considered. This includes confiscation. Previously, the application for the appointment of a public defender had been rejected because it was deemed not warranted due to the seriousness of the offense, the severity of the expected legal consequences, and the complexity of the factual and legal situation. However, the defendant's immediate appeal was ultimately successful, as the young adult defendant, while not facing juvenile detention, did face a substantial fine and the confiscation of €15,550.00, a considerable sum. Despite his employment, this amount posed a threat to his livelihood and the continuation of his studies, and thus represented a serious disadvantage to such an extent that, given the severity of the expected legal consequences, the involvement of a defense attorney appeared necessary.

In a decision dated March 27, 2025, the Federal Constitutional Court ruled on the constitutional complaint of a previously convicted individual. After the complainant—and likewise his defense counsel—failed to appear at the main appeal hearing in September 2023, subsequently submitting a medical certificate, the appellate court dismissed the complainant's appeal and heard only the appeal of the public prosecutor's office in a third matter. A further appeal on the merits was unsuccessful. The complainant's constitutional complaint is found to be manifestly well-founded.

The Federal Constitutional Court held that the provisions of the Code of Criminal Procedure concerning the mandatory appointment of defense counsel and their participation in criminal proceedings are concrete manifestations of the rule of law principle enshrined in the Basic Law, specifically as the requirement of fair proceedings. The decision as to the expected sentence at which the severity of the anticipated legal consequences necessitates mandatory defense counsel always requires the court to assess the expected sentence in the specific case. It can generally be assumed that—even in cases involving a combined sentence—mandatory defense counsel is required when a prison sentence of one year or more is expected. This would have been the case here, as the appellant was sentenced to one year and six months in the judgment based on the appeal proceedings. The two previous judgments resulted in a combined prison sentence of two years.

Furthermore, the Federal Constitutional Court determined that the provision of Section 140 Paragraph 2 of the Code of Criminal Procedure also applies to appeal proceedings. It is generally accepted that, in cases of mandatory defense, the failure to summon, appoint, or prevent the defense counsel from appearing due to illness precludes the dismissal of the appeal under Section 329 Paragraph 1 of the Code of Criminal Procedure. Therefore, there is no reason to treat the prosecution's appeal differently.

The Federal Court of Justice (BGH) dismissed the immediate appeal of a defendant against the rejection of the appointment of a second court-appointed lawyer by decision of May 15, 2025. The defendant was charged with membership in a criminal organization aimed at committing particularly serious offenses and with other offenses.

The Federal Court of Justice (BGH) ruled that the appointment of an additional court-appointed defense attorney is only necessary in very limited exceptional cases. This is the case when the main hearing is expected to extend over a particularly long period and it must be ensured that proceedings can continue even if one defense attorney is unavailable, or when the case material is so exceptionally extensive or complex that it can only be thoroughly examined and mastered within the available time through the collaborative work of several defense attorneys. This could not be established in the present case, as, despite the considerable size of the case file, the charges were manageable and the evidentiary situation was not difficult. In the BGH's view, the already appointed court-appointed defense attorney would have had sufficient time to familiarize himself with the proceedings, and any scheduling conflicts could have been resolved by a substitute attorney.

The Federal Court of Justice (BGH) ruled on April 30, 2025, regarding the appointment of a second court-appointed defense attorney, thereby dismissing the defendant's immediate appeal. The appellant was accused of membership in a foreign terrorist organization. The BGH stated that the appointment of an additional defense attorney requires that it be necessary at the time of the order to ensure the expeditious conduct of the proceedings. This is only to be considered in very limited exceptional cases where, due to the particular scope or complexity of the case, there is an unavoidable need to guarantee the proper protection of the defendant's rights and an orderly and expedient course of proceedings. This is not warranted—as in the present case—simply because of extensive self-study or particular legal complexity of the proceedings. Furthermore, the merely abstract, theoretical possibility of the court-appointed attorney's subsequent unavailability does not generally provide grounds for appointing an additional attorney.

On April 16, 2025, the Federal Court of Justice (BGH) ruled against the appointment of an additional court-appointed defense attorney for the defendant in proceedings concerning suspected espionage under Section 99 of the German Criminal Code (StGB) through cooperation with a Chinese intelligence service. The defendant had initially been assigned a court-appointed attorney, who was subsequently dismissed after two other privately retained attorneys filed a notice of representation. Most recently, the defendant had two privately retained attorneys, one of whom applied for appointment as a court-appointed attorney.

The Federal Court of Justice (BGH) deemed the participation of a second defense attorney unnecessary, as there was no compelling need for it. The case file was manageable, the trial was scheduled for 13 days, and there were no complex legal issues that would require multiple lawyers. Furthermore, the BGH determined that the principle of procedural fairness does not require the number of defense attorneys for each defendant to correspond to the number of prosecutors participating in the trial.

In cases of mandatory defense (§ 140 of the German Code of Criminal Procedure), a public defender is appointed. The law provides for this, among other things, in the case of a main hearing before the Regional Court or in cases of pre-trial detention.

Yes, you can request the court to appoint a specific public defender. If the court agrees, the request will be granted.

No, both court-appointed and privately retained lawyers are fundamentally equally obligated to provide an effective defense.

This depends on the individual case. The costs are agreed upon individually and transparently between the defense attorney and the client.

Yes, that is generally possible.

Yes, this is possible under certain conditions. In ongoing criminal proceedings, for example, this is possible if the relationship of trust has been broken.

If there is no case requiring mandatory defense, then generally yes. However, it is advisable to consult a criminal defense attorney for a successful outcome of the proceedings.

A privately retained defense attorney can be involved at the earliest possible stage of the proceedings, thus enabling a strategically swift conclusion. Furthermore, the communication and trust relationship is often better, which is effectively beneficial to the proceedings. However, it is also possible for a defense attorney chosen by the accused to request the court to be appointed as a public defender.