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Change of public defender> criminal law (lawyer Ferner Alsdorf Aachen)

The Federal Court of Justice (StB 39/20) was able to comment on the change of public defender at the end of 2020 – the BGH emphasizes that it is next to the change Section 143a (2) StPO there is also the special case of the “consensual change of public defender”. It is therefore possible that public defenders are simply changed by mutual agreement of the parties involved.

The BGH stated:

The requirements for a change of defender according to Section 143a (2) sentence 1 StPO are also not given. Irrespective of the other requirements, an independent, “consensual” change of public defender may be considered if it is cost-neutral (…)

BGH, StB 39/20

You have to read carefully, but – in accordance with the justification of the legal form of the mandatory defense – the BGH also obviously assumes that there must be the consistent replacement of the public defender, which is a case not regulated by law, who independently in addition to the Section 143 (1) no. 1-3 StPO stands. However, the prerequisite is cost neutrality, which is quite difficult to implement with the previous case law of the OLG Cologne.


With the current decision, the BGH confirms the right of the accused to the lawyer of his choice – and at the same time the professional work. Anyone who, as a defense attorney, does not pick up the phone and call the previously assigned colleague without further ado, is making a mistake, since obviously if so, then all parties involved have to act amicably. Flat-rate explanations of additional costs are not sufficient:

It is true that the defense attorney submitted in his original application that “a change of defense attorney will not lead to an additional burden on the judicial coffers”. However, as already stated in the contested decision, this has not been proven. Insofar as the public defender’s waiver of his remuneration is to be considered, the current defender has not declared such a remuneration. According to the specific circumstances, this is particularly not in the flat rate that there will be no additional burden

BGH, StB 39/20

This means that in the ideal case the lawyers agree, both declare that they agree to the change of obligation while avoiding additional costs and the issue is through. Problems with not being a case of the Section 143a (2) StPO in these cases there cannot be, because it is a standalone case, practice shows here that – next to itself against §15 Abs.1 BRAO like non-reporting colleagues – some chairmen are skeptical. The BGH shows that the concern is unnecessary.

Attorney Jens Ferner: Defense attorney & specialist lawyer for IT law

In the Aachen & Heinsberg area as a criminal defense attorney and specialist lawyer for IT law, your contact person for all areas of criminal law with a focus on criminal defense & cybercrime and personal rights. Furthermore in the regulatory offense law, especially in the case of fines from federal authorities. He works together with specialist lawyer for criminal law Dieter Ferner, the firm’s founder, who works in criminal law and traffic law.–
Lawyer Jens Ferner: Defense lawyer & specialist lawyer for IT lawLawyer Jens Ferner: Defense lawyer & specialist lawyer for IT law

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