Legal aid in criminal proceedings: the entitlement to assigned defence counsel

Legal aid means that an accused person is assigned defence counsel without first having to pay a fee for it. It is meant to ensure that even people on a low income are defended appropriately and receive a fair trial. Legal aid expresses the principle that the economic situation must not decide the quality of the defence.

Mandatory defence is to be distinguished from this. It concerns the question of in which proceedings counsel is compulsory, irrespective of income. Both institutions often interlock: where mandatory defence applies and the person cannot appoint chosen counsel, the assignment of counsel comes into question.

The distinction from chosen defence is important. Anyone who instructs and pays for counsel themselves makes use of chosen defence. Legal aid, by contrast, is intended for those who cannot afford a defence.

The law names in Section 61(1) StPO the cases in which an accused person must be represented by counsel in the proceedings. These include in particular the period of pre-trial detention as well as the main trial before the lay-judge or jury court, that is, in proceedings concerning more serious allegations.

The idea behind this is that expert defence is indispensable precisely in far-reaching proceedings. Where a case of mandatory defence applies and the person has no chosen counsel, counsel must be assigned to them.

From a legal perspective the early clarification of whether mandatory defence exists is important. It determines from which point in time a defence must in any event be ensured.

Legal aid under Section 61(2) StPO requires two things. First, the accused person must be unable to bear the costs of the defence without impairing the necessary maintenance. What matters is therefore the economic situation, with the necessary maintenance for themselves and dependants not to be diminished.

Second, the assignment must be required in the interest of the administration of justice, above all in the interest of an appropriate defence. This ensures that counsel is assigned where it is actually needed for the appropriate exercise of rights.

From a legal perspective it is advisable to present your own economic situation comprehensibly and to file the application early. That way the defence can be set up reliably from the outset.

Where the conditions are met, the court decides on the application for legal aid. If it is granted, legal-aid defence counsel is assigned under Section 62 StPO. The selection of the specific counsel is made through the bar association.

The assigned counsel conducts the defence like chosen counsel. In substance there is no difference in the quality of the defence; the difference lies solely in the question of who bears the defence economically.

From a legal perspective it is sensible to prepare the application carefully and not to wait until the main trial. An early assignment makes it possible to inspect the file and develop the line of defence from the start.

With the grant you first receive assigned counsel without bearing fees yourself. This does not, however, mean in every case that no costs whatsoever will arise in the long run. If the financial circumstances change or the conditions were not met from the start, this can affect the grant.

The general costs of the proceedings are to be kept separate from this. If a person is convicted, these can affect them under the rules of the Code of Criminal Procedure. How this plays out in the individual case depends on the outcome of the proceedings and the economic situation.

From a legal perspective it is helpful to know these possible consequences early. That way it is possible to assess realistically from the outset what legal aid achieves and where limits lie.

Anyone who can afford it can instruct chosen counsel at any time and thereby decide on the selection themselves. Legal aid, by contrast, is tied to the condition that the costs cannot be borne without impairing the necessary maintenance. The two side by side are not provided for.

From a legal perspective the cost questions of a chosen defence can be discussed openly in advance. On that basis you can decide which path fits your situation, whether chosen defence or an application for legal aid.