"The defendant can avail himself of the assistance of a defense attorney in any situation of the proceedings."
– according to § 137 para. 1 StPO. Anyone can therefore hire a criminal defense lawyer at any time to defend them in criminal proceedings, regardless of whether the proceedings have just been initiated, whether charges have been filed, or whatever other situation the criminal proceedings may be in at the moment. For indigent defendants, this right is often a theoretical one, because those who cannot pay for a lawyer cannot avail themselves of the assistance of a defense lawyer either .
It is not uncommon for defendants to assume that this gap will be closed by legal aid (PKH) – but this is not the case. Legal aid is available in civil proceedings, in administrative proceedings, before the social court and also in proceedings before the labor court – in criminal proceedings, however, the legislature has not provided for legal aid for the accused . An exception is the so-called adhesion procedure. In this procedure, claims for damages and compensation for pain and suffering by the victim of a crime can already be asserted in the criminal proceedings – in substance, this is also a procedure for civil procedural claims, not the actual criminal proceedings. Directly in criminal proceedings, only the joint plaintiff, i.e. the injured party of the crime, can claim legal aid. Long story: If you're an accused of a crime and need defense counsel, you're not eligible for legal aid.
Who pays for the lawyer in criminal law?
If you hire a lawyer to defend you, you have to pay for the lawyer yourself. If he is acquitted at the end of the (main) proceedings, the expenses for the lawyer will be charged to the state treasury, so this then means reimbursement of legal fees in the amount of the fees under the Lawyers' Fees Act (Rechtsanwaltsvergutungsgesetz). If the client and lawyer have – as is often the case – concluded a remuneration agreement that exceeds the RVG fees, the additional costs will not be reimbursed. Read more about the costs of a criminal defense lawyer here.
Public defender instead of legal aid in criminal law
Instead of legal aid, the legislator has created the so-called "necessary defense" gem. § Section 140 of the Code of Criminal Procedure – better known as the public defender's office. If serious charges are brought against the accused or if he is threatened with other serious disadvantages from the conviction or if he is not in a position to defend himself, then a public defender is assigned to him. Although the assignment of a public defender is independent of (and actually has nothing to do with) the defendant's income situation, it has the effect of ensuring that the indigent defendant is not without the assistance of counsel in criminal proceedings. However, with the significant caveat that it can be used in "simple or. no lawyer is assigned in less serious criminal proceedings.
The only alternative to fill this gap is the counseling assistance in criminal proceedings, however, even this is not a real substitute.