I. Introduction
Regularly, judges in summary proceedings refuse the defense's request to release the defendant from the obligation to appear in person, even though a written power of attorney has been submitted. Also, the appearance of the accused is regularly ordered without written or even conceivable reasons. The essay is intended to provide approaches for action and reflection for the summary penalty order procedure and the norm of § 411 para. 2 p. 1 StPO.
II. The presence of the defendant as a procedural principle
As a general procedural maxim, the principle of immediacy for the main hearing determines that the court itself must establish the facts relevant to the judgment. The principle of the presence of the parties to the proceedings follows from this, which for the defendant arises from § 230 (1) StPO. In this way, the defendant is to be granted the right to be heard in court and the opportunity to mount an effective defense. The presence of the accused is intended to give the court a direct impression of his person, his demeanor and his explanations in order to ascertain the truth. It does not seem realistic that the personal appearance of the accused before the court can make a favorable outcome more likely. This may be because the judge in charge of the trial infers from the personal appearance of the defendant that the latter is not hiding from the burden of answering for the alleged offense in person. Section 230 (1) StPO can therefore be interpreted both as an obligation and a right of the defendant to be present.
III. Exception to the principle of attendance in summary proceedings
The purpose of the order for summary punishment procedure is to arrive at a conviction as quickly as possible, at low cost and without a costly main hearing. According to § 407 para. 1 p. 1, 1. Alt. StPO, the issuance of a penalty order is always permissible if the offense to be judged before the court (§ 12 para. 2 StGB) is involved. If there is sufficient suspicion of guilt against an accused person with regard to such an offense in accordance with § 170 para. 1 StPO, the public prosecutor may apply to the competent judge for a penalty order. Pursuant to § 407 (2) StPO, the application must generally be for a fine and certain ancillary penalties; custodial sentences may only be applied for if they are shorter than one year and if they are suspended on probation. Due to this one-sidedness, the penalty order can be understood as an offer to the defendant, which he "accepts" by surrendering or rejects by lodging an objection.
The objection as an extraordinary legal remedy has the function of eliminating the "suspensive sentence" and forcing the execution of a main hearing. If an objection is filed in writing or for the record of the office within two weeks of service in accordance with § 410 (1) StPO, a date for the main hearing shall be set, § 411 (1) sentence 2 StPO. After the objection, the penalty order takes on the function of the opening order. The subsequent main proceedings are governed by the general provisions of Section 213 et seq. of the Code of Criminal Procedure.
The defendant does not have to appear in person at the main hearing after objecting to the penalty order. Pursuant to § 411.2 sentence 1 StPO, he can be represented by a defense counsel with written power of attorney.
IV. Interests of the defendant in not attending the proceedings
In some cases, it may be very convenient for the defendant to be released from appearing at the main hearing. The defendant has to invest time and money if he wants to appear in court in person. However, a probably more important factor is that the personal presence of the defendant in court also entails a psychological burden. Thus, the criminalization already suggested by the issued order of summary punishment must be metaphorically "faced". As already explained, orders of summary punishment bring especially smaller offenses to the main hearing, and so it seems understandable that the psychological burden of a main hearing can weigh disproportionately more heavily compared to the alleged offense. The exception to the principle of attendance granted by law in accordance with § 411 (2) sentence 1 StPO does justice to the special features of the penalty order. The penalty order issued before the main hearing is not based on a judicial hearing of evidence, but only on the contents of the file as determined by the public prosecutor and the police. The order for summary punishment is therefore preceded by a one-sided process of state power. The law therefore allows the defendant to at least physically evade the "David versus Goliath" struggle by "sending" a defender as his representative, an opponent of equal standing, "into the arena".
V. The defense counsel as the defendant's representative (in particular in summary proceedings for a court order of punishment)
The defense counsel is generally not the representative of the accused, but an independent organ of the administration of justice (Section 1 Federal Lawyers' Act (BRAO)). Pursuant to Section 137 Code of Criminal Procedure (StPO), the defense counsel is the accused's counsel; pursuant to Section 234 StPO, he replaces him.17 Thus, the defense and representation of the accused are to be separated.
Effective representation requires a written power of attorney. A general power of attorney "for all procedural acts" is not sufficient.
It is sufficient if the defendant informs the court in writing of the power of attorney or declares it for the record. The power of representation can be established at the same time as or with the power of defense.
The power of attorney must be available to the court at the beginning of the proceedings. Exceptionally, proof of a written power of attorney is not required at the beginning of the proceedings if its existence can be ensured by other means, e.g. if the written power of attorney that was initially available was revoked but then orally confirmed and this is evident from the minutes of the meeting. For reasons of legal certainty, the court must have reliable proof of the power of representation.
In fact, there is no proper representation if the defense counsel declares that he cannot comment due to a lack of information from the defendant and therefore resigns from the mandate, or if he only files a motion to postpone the main hearing.
VI. Legal consequences of (ineffective) representation
In practice, even if the defendant is properly represented by a defense attorney, it still often happens that the defendant's absence is interpreted by the court as an unexcused absence and a judgment of dismissal is issued pursuant to § 412 StPO. A judgment of dismissal under § 412 StPO requires that the defendant has neither appeared nor been represented by his defense counsel, and does not have sufficient excuse for his absence. If the defendant is effectively represented by his defense counsel, it cannot be concluded that the defendant has forfeited the review of the order for summary punishment sought by the objection due to his non-appearance.
The court is therefore not authorized to dismiss the objection in accordance with § 412 StPO if an authorized representative has appeared instead of the defendant. The defendant can apply for reinstatement. If he appeals, the court of appeal shall set aside the judgment of dismissal and refer the case back to the district court for a hearing of the facts, since otherwise the defendant would lose a court instance and the court of appeal is not competent to decide on a permissible objection.
VII. Exception to the exception: order to appear in person according to § 236 StPO
Despite the general possibility of representation in accordance with § 411 (2) sentence 1 StPO, the court is always authorized to order the personal appearance of the defendant in accordance with § 236 StPO, which in turn does not affect the right of the defendant to be represented in court. This also applies if the conditions for representation described above are met. If the defendant does not comply with the request, the court can have him/her brought before the court. The court decides at its dutiful discretion whether the defendant's personal appearance should be ordered despite representation. The exercise of discretion is mandatory if the personal appearance is ordered, if this is necessary to clarify the facts of the case and if the defendant can be expected to appear, taking into account his interests and the significance of the criminal case. Therefore, a comprehensive assessment of all aspects in favor of and against the order is required. What is important for this weighing of interests is that the court may order the defendant to appear in person, even if the distance between the defendant's place of residence and the place of jurisdiction is great, in order to identify the offender on the basis of photographs.
If the defendant does not appear despite having been ordered to do so, the court is not obliged to use coercive measures. This is because, in principle, a trial can also be held in the absence of the defendant. According to § 236 StPO, the appearance of the defendant can be enforced by means of a warrant of arrest or a warrant of detention. However, the court must observe the principle of proportionality when ordering coercive measures. If the appearance of the defendant can be ensured by simpler means, coercive measures must not be applied. It follows from this that the order of appearance takes precedence over the arrest warrant.
VIII. Options
The procedural means of attack of the defendant against the court can have two different objectives. On the one hand, he can, in the first stage, object to the order to appear in person; in this case, he has the option of filing a motion to recuse the judge on the grounds of bias (Section 24 of the German Code of Criminal Procedure (StPO)). Secondly, he can defend himself against the court's coercive measures, which are threatened in the event of the challenge for bias being unsuccessful.
1. reaction to an arbitrary-seeming order to appear in person
The order to appear in person issued in advance in accordance with section 236 of the German Code of Criminal Procedure (StPO) is a decision that precedes the judgment and is therefore not subject to appeal (section 305 of the StPO). Since the court's order for personal appearance can at least be interpreted as a tendency towards the subsequent imposition of coercive measures – a judge ordering personal appearance will generally attempt to enforce this at the second stage by means of coercive measures – it is highly advisable to take action against the order to appear in person at this stage. Since disciplinary proceedings against an individual judge cannot be brought by one of the parties to the criminal proceedings due to the judge's constitutionally guaranteed independence (Art. 97 (1) of the German Basic Law), thepossible course of action for eliminating the appearance order is to file an application to challenge the court on the grounds of a fear of bias (Section 24 of the Code of Criminal Procedure).
However, as explained, the court's order to appear in person must have been preceded by a discretionary decision on the part of the court. In practice, it seems rather arbitrary in this context for a court to insist on the presence of the defendant despite the presence of a defense attorney who is effectively authorized to represent the defendant. Even an objective observer may get the impression that some judges view the absence of the defendant as an affront and are guided by extraneous considerations. If the personal presence of the defendant is obviously irrelevant for the establishment of the truth in court, then private interests or an arbitrary or seemingly arbitrary act must be suspected behind the order to appear in person.
It is questionable whether a judge acting in this way might not even justify mistrust in the impartiality of his actions, both now and in the future. This could justify a challenge on the grounds of concern regarding partiality in accordance with section 24, paragraph 1, 2nd alternative of the StPO. Of course, not every personal antipathy or erroneous decision can be used to support a challenge for partiality. However, the requirements placed on such an application by case law are not so high that it would be doomed to failure from the outset. This is because section 24 (2) StPO is not only fulfilled if the rejected judge is actually partial or biased, but if there is the appearance of bias. Accordingly, a judge is to be presumed to be biased if an average observer, putting himself in the role of the defendant, would suspect bias upon careful consideration of the circumstances. With regard to the standard of assessment as to whether a judge is to be presumed to be biased, it must be taken into account in the present case that although only one person appears before the court, this person fulfills a "dual function", since on the one hand he represents the defendant and on the other hand he acts as a defense attorney. For this reason, the point of reference for assessing bias is also twofold. In the literature, a distinction is generally made between the relationship between "judge-defendant" and "judge-defender" when determining whether a judge is biased, whereby a defect in theof the relationship between "judge and defendant" should only exceptionally support a challenge for bias. However, this restriction cannot be fully maintained for the scenario in which the representative (defendant) and the defense attorney act in court in a personal union, so that a biased attitude on the part of the judge towards the defense attorney also has a direct effect on the defendant. Once the perspective according to which the assessment of bias is to be conducted has been clarified, the question now arises as to whether there is also a reason for bias in the specific case that leads to the court being biased. In this context, conclusions can be drawn about the court's impartiality from its behavior. In particular, gross or objectively arbitrary violations of procedural law or those based on a disregard for fundamental procedural rights of parties to the proceedings are recognized as grounds for challenge.
If these results are applied to the case of a judge ordering a defendant to appear in person at the main hearing after an objection to a penalty order, a challenge for bias could certainly be based on the grounds that the judgearbitrarily ordered the personal appearance. If, based on the specific external circumstances of the case and the course of the proceedings to date, there is an impression that the court is ordering the personal appearance not because it is necessary to establish the truth, but rather as an educational measureagainst misinterpreted disrespect (e.g. due to the judge's wounded vanity; the court's suspicion that the defendant wants to "skip" a hearing), the order to appear in person is not comprehensible from the point of view of an objective third party and can therefore constitute a procedural defect. This objective circumstance of a procedural defect, in conjunction with the underlying subjective sensitivities of the judge, can then give rise to a conflict of interest within the meaning of § 24 (2) StPO. As a rule, this can be recognized from court decisions on this subject that are not at all well-founded and in fact cannot be justified.
2. reaction to subsequent coercive measures
An appeal against the imposition of coercive measures is admissible (§§ 304, 305 StPO). The arrest warrant can also be challenged with the further appeal according to § 310 para. 1 StPO. It does not matter whether the arrest warrant has already been executed or is still outstanding. The appeal is well-founded if the arrest warrant appears disproportionate under § 230 (2) StPO for enforcing the presence of the defendant in the main hearing. The arrest warrant must not be allowed to degenerate into a disciplinary measure for "disobedient defendants" in summary penalty proceedings, to which the arrest of the defendant is structurally alien. Rather, the purpose of the warrant is to ensure that the main hearing is carried out in a manner that takes into account the duty to investigate and the creative ideas of the trial judge. Before issuing the arrest warrant, it is necessary to examine whether the court can nevertheless conduct the main hearing without detracting from the search for the truth, despite the defendant's disobedience. The criminal court judge also has to take this into account if the offense is of rather minor criminal significance. As soon as it becomes clear to an objective third party that not only the duty to investigate and the creative imagination of the judge are in the foreground, the challenge for bias can also be considered here. For example, the statement of a judge in the criminal order procedure at the hearing, after he learns that the defendant is being represented by the defense attorney with written power of attorney: "Well, there is the great § 230; Mr. Prosecutor, what do you think? That would be something, wouldn't it?" immediately lead to a motion under § 24 StPO. Specifically in the example given, the negotiation without the defendant - after the motion had been made - was then possible after all. It was only necessary for the defense counsel to promise that the challenge for bias would be withdrawn.
IX. Conclusion
Particularly in summary proceedings, the participation of the defendant – especially in the case of silence – hardly makes sense. The defense must ensure that the order to appear in person and the means of coercion are used correctly in accordance with procedural and constitutional law. If there are indications that defense is not possible other than by objection under section 24 of the Code of Criminal Procedure, the defense must not hesitate.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.