Certified Specialist Lawyer for Criminal Law

The range of criminal offenses on and via the Internet is large and cannot be described conclusively. Currently widespread manifestations of cybercrime occur in a variety of ways, often through the infection and manipulation of computer systems with malware, or through network intrusions and DDoS attacks, the spread of malware and fraud, e.g. B. for the purpose of identity theft using phishing, the operation of botnets, digital extortion using ransomware, but also in very complex forms such as CEO fraud by means of social engineering, in which the weak point human being is deliberately exploited.

A case of necessary defense, with the result that the defendant must be assigned a mandatory defense lawyer, can generally exist if the allegation is serious, the accused faces serious consequences in the event of a conviction, or if the accused is clearly unable to assert himself defend. It always depends on the individual case.

On December 13, 2019, both the “Law to Modernize the Criminal Procedure of December 10, 2019” and the “Law to Reorganize the Law of the Necessary Defense v. 10.12.2019 ”(BGB l I, p. 2128) came into force. This is intended to implement the EU directive 2016/1919, i.e. the so-called PKH directive.

Pursuant to Section 140 (1) No. 4 of the Code of Criminal Procedure, a mandatory defense lawyer must now be appointed in the cases of the judicial demonstration, as well as if the main hearing takes place before the lay judge.

The accused now has his own right to file an application, which he must also assert (section 141 (1) sentence 1 StPO). If the accused requests the assignment of a public defense attorney, his application in the cases of necessary defense must be granted without further ado.

Section 140 (2) of the Code of Criminal Procedure expressly includes the “severity of the expected legal consequence” as a criterion for assessing whether the involvement of a defense lawyer is required.

In addition to the amount of the penalty to be expected in the proceedings, the seriousness of the offense can also result from the accused as a result of impending or impending indirect disadvantages as a result of the conviction. This can be the case with a possible probation revocation due to an expected new sentence during the probation period of an earlier sentence. Accordingly, even if the sentence is expected to be less than a year in prison, it may be necessary to assign a defense lawyer if, as a result of this sentence, there is a risk of revocation of a suspended sentence for probation in another matter, in particular if the sum of the prison sentence to be expected in the new criminal proceedings and the of a possible revocation of the suspended sentence for probation reaches or is greater than one year.

Inability to defend oneself may be the case, in particular, for a foreign accused who is not sufficiently proficient in the German language, if the use of an interpreter is not sufficient to fully compensate for the limited defense options due to the language deficits. In any case, this applies to complex matters that can only be clarified by witness interrogations, and in particular when the credibility of the statements and the credibility of the witnesses are also important.

If a victim joins the proceedings as a co-plaintiff and uses legal assistance at his own expense, there is regularly a case of necessary defense from the point of view of equality of arms if this would otherwise create a procedural imbalance.

The economic circumstances of the accused are irrelevant. The costs of assigning a defense lawyer are part of the procedural costs. These are only payable by the state treasury in the event of an acquittal.