Problems regularly arise when, in cases where multiple defense attorneys have been retained, the court considers it sufficient to have only one of the attorneys present at a hearing. However, the defense attorneys—as well as the client—place importance on all attorneys being able to work to their full capacity. This is difficult without participation in the main hearing.
According to legal literature and case law, the court is generally not required to take this into account if one of several defense attorneys is unable to attend a hearing, as the principle of expediency requires that the proceedings be conducted as quickly as possible. A different outcome would only arise if the decision were based on considerations unrelated to the case or if, in the specific instance, postponing the hearing would not affect any interests of the defendant(s) worthy of protection.
1.
No legal right to a postponement arises from § 213(1) StPO. According to this provision, consultation is required only in extensive proceedings.
Nor does established practice give rise to a right to a postponement of a hearing in the absence of a defense attorney. According to case law and legal doctrine, the judge must decide on a motion for a hearing or postponement in accordance with his or her discretion. While the judge must also take into account the defendant’s interest in being represented by a defense counsel of his or her choice (an expression of the principles of the rule of law and fair trial under Art. 20(3) and Art. 2 of the Basic Law), greater weight is generally given to the requirement of expeditious proceedings, so that the balancing of interests works to the detriment of the defense counsel. The defense counsel’s schedule may only be taken into account to the extent that it does not lead to a significant delay in the proceedings (BVerfG StraFo 2007, 152 (155); StV 2007, 366 (368); 2008, 198 (199); OLG Cologne StV 2006, 145 (146); 2006, 463; OLG Stuttgart NStZ-RR 2009, 243 (244); Hamm Higher Regional Court (OLG Hamm) BeckRS 2015, 08165 on scheduling conflicts in other proceedings; Bremen Higher Regional Court (OLG Bremen) StV 2016, 508 with critical note by Schlothauer; cf. on the casuistry Rahle FS Widmaier, 2008, 447)
This is further exacerbated if the defendant is in custody or if there are multiple defendants, since a postponement would then infringe upon their rights, even if the defendant concerned were to consent (BeckOK StPO/Ritscher, 54th ed. Jan. 1, 2025, StPO § 213, para. 4; KK-StPO/Gmel, 9th ed. 2023, StPO § 213 n. 4b).
2.
This goes so far that, in the absence of a defense counsel of the defendant’s choice, a new court-appointed defense counsel may also need to be assigned to ensure the prompt conduct of the proceedings (BVerfG NStZ-RR 2007, 311). Where there are multiple defense counsels of the defendant’s choice, it is generally assumed that they can represent one another. This applies even if it results in no defense counsel attending all trial dates or the trial being conducted by only one defense counsel because the other is never available. (Brauer, NStZ 2024, 11)
3.
However, the limit of a permissible scheduling decision would be reached if the court cites irrelevant reasons to “rush through” the proceedings. The same must apply where, in a complex case that should reasonably be handled through a division of labor, the interests of an effective defense can be safeguarded without violating the principle of expeditious proceedings. Thus, it is now correctly held in legal scholarship that an appeal should be admissible against a decision that is manifestly irrelevant to the case and contrary to the law. (OLG Hamm NStZ 1989, 133; OLG Düsseldorf VRS 90, 127; LG Zweibrücken NZV 1996, 165). Furthermore, such conduct may also be viewed as indicating a bias on the part of the judge.
It should be noted that the defense—if more than one defense counsel appears necessary for a proper and adequate defense—must persuade the court, through arguments and motions, to make a scheduling decision that is balanced and appropriate.
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.