Section 393a StPO: Defence cost contribution after acquittal or discontinuance

The contribution requires an acquittal or one of the forms of termination listed by law. These include discontinuance after a successful objection to the indictment, withdrawal by the public prosecution before the trial begins, discontinuance in proceedings before a district court and discontinuance in proceedings before a single judge of a regional court. Certain retrials or renewals of criminal proceedings may also be covered.

The rule applies to accused persons whose proceedings were not based solely on a private prosecution or on the indictment of a private party. In a case involving several legal bases, it is therefore necessary to identify the source of the prosecution and the decision that ended the proceedings.

Section 393a StPO creates a right to a contribution. The amount does not automatically equal the fees paid. The court considers the scope of the proceedings, the complexity of the factual and legal questions and the necessary or appropriate work performed by the defence lawyer.

The amounts listed are maximum limits, not flat-rate payments. The court sets the contribution according to the circumstances of the individual case. Extensive files, difficult factual and legal questions and substantial defence work may support a higher contribution. The fee invoice is not automatically reimbursed in full.

If the trial lasts longer than usual, the relevant maximum may be increased by half. In cases of extreme scope, it may be doubled. The statutory conditions for these increases must be met. A long period between procedural steps does not by itself describe the scope of the trial.

Cash expenses form a separate part of the claim. They are necessary expenses paid by the accused in connection with the proceedings. Invoices, payment records and a clear link to the case make the assessment easier.

The claim is excluded to the extent that the accused intentionally caused the suspicion that led to the proceedings. This exclusion concerns the cause of the proceedings and must be assessed in light of the file.

A contribution is also excluded if the proceedings ended solely because the accused committed the act while legally incapable of responsibility or because authorisation to prosecute was withdrawn during the trial.

The rule also excludes the claim where the criminality of the act ceased for a reason that arose only after the indictment or application for punishment had been filed. The procedural timeline and the exact reason for termination therefore matter.

The application must be filed within three years after the accused has been informed of the decision or order. After that period, the claim is excluded. The date on which the information was received should therefore be recorded carefully.

The application should identify the outcome, file number, cash expenses, defence fees and payment records. A copy of the decision and an understandable fee invoice are important documents. Where several instances were involved, the costs must be allocated to the relevant stage of the proceedings.

The file and the decision ending the proceedings show where the application belongs. The application should be sent to the competent criminal court and proof of filing should be kept. The appeal information in the decision is a useful starting point for identifying the procedural route.

The competent criminal court decides the application under section 393a StPO. The procedural outcome determines the relevant allocation. The application should therefore state the court, file number, type of proceedings and decision from which the acquittal or discontinuance follows.

A timely appeal against the decision on the application has suspensive effect. Further rights under the Code of Criminal Procedure, the Public Liability Act and the Criminal Compensation Act 2005 remain unaffected. Those rights have their own requirements and require a separate assessment.

If jurisdiction is unclear, the application should be prepared before the three-year period approaches its end. The decision, the notice of that decision and the procedural correspondence show which court and remedy are relevant.

Keep the acquittal or discontinuance order, the notice of the decision, the file number and relevant summonses or procedural orders available. The fee agreement or fee invoice and proof of payments should be added.

A short cost overview separates defence fees, cash expenses and any costs involving other participants. A timeline covering investigation, indictment, trial, appeal and termination also helps to assess the necessary defence work.

These documents show which cost items are claimed and which stage of the proceedings they relate to. Where several decisions or instances are involved, this separation prevents different cost questions from being mixed together.