Accused without a defense attorney: helpless before the judge

Status: 6/6/2023 6:00 a.m

Many penniless defendants end up in prison simply because they cannot afford a lawyer. Minister of Justice Buschmann is open to the ARD for the first time to expand the right to mandatory defense.

By Arnd Henze (WDR), Klaas-Wilhelm Brandenburg, Alex Grantl and Isabel Schneider (NDR)

It’s a short process, the crime is clear: Marcel S. was caught three times without a ticket on the subway. Judge Anja Grund’s schedule at the court on standby in Berlin-Tempelhof only provides a few minutes before the verdict is clear: a fine of 1,350 euros. A penalty that Marcel S. will probably never be able to pay and that he may therefore have to serve in prison – with a substitute prison sentence.

A lawyer might have found a way to avoid that penalty. But Marcel S. had no lawyer – just as most of the defendants in the standby court have to do without legal counsel. A public defender is rarely appointed by the court in such seemingly simple cases. A claim only exists in proceedings in which a prison sentence of more than one year is threatened or if the accused has special limitations such as a hearing impairment.

Marcel S. may have to go to prison because he couldn’t afford a ticket.

Poverty is concealed out of shame

In the ARD documentary “poor and rich in court” judge reason openly admits that she can hardly do justice to those affected with 15 procedures a day. These quick procedures are a “mass business”.

Among the accused are many pensioners who were caught shoplifting for the first time: “People don’t have any money, and then they should also pay high fines. For acts that ultimately caused damage of ten euros.” , says the judge.

Judge Anja Grund has to decide on 15 summary proceedings a day at the standby court in Berlin-Tempelhof.

In such cases, the pure facts are often undisputed. However, a defense attorney could put forward reasons that would lead to a milder sentence. And above all, it would prevent many of the accused from hiding their poverty out of shame. Because the amount of the daily rate of a fine depends on the income – and is usually only estimated by the court.

“Many of the accused talk about their necks and necks precisely because they make a good impression and don’t want to admit to the outside world that they don’t even have the basic necessities to live,” says journalist Ronen Steinke, who is responsible for the book “Before the Law Are Not all equal” spoke to many defendants and judges. If these people cannot pay the fine, which is often far too high, they can be imprisoned with an alternative term of imprisonment.

More and more judgments without defense

In every third court hearing, the accused sit alone before the public prosecutor and the judge in a world of justice that is alien to them. Most cases no longer end up in the courtroom. In 60 percent of cases, the verdict comes in the mail without a hearing – as a penalty order. This is prepared by the public prosecutor’s office and often only superficially checked and signed by a magistrate.

This relieves the courts, but is prone to errors, as the Hamburg district judge Lena Dammann openly admits: In a hearing, she must be convinced of the guilt of the accused “with a probability bordering on certainty”;

If you can afford a lawyer and file an objection in good time, you have a good chance that a penalty order will be corrected. Penniless suspects, on the other hand, are often “people who are not intellectually able to understand what is actually being written,” says the experienced lawyer. However, as soon as the objection and payment deadlines are exceeded, the fine is automatically converted into a replacement prison sentence.

High detention costs

Half of the 500 or so prisoners are being held in the Berlin-Plötzensee prison simply because they were unable to pay their fine. This is expensive, because a detention place costs around 175 euros a day, depending on the federal state. A shoplifting with ten euros damage can therefore lead to costs of over 5200 euros with 30 days of detention.

Nationwide, the replacement prison sentences cost taxpayers more than 200 million euros per year. Uwe Meyer-Odewald, head of the facility in Plötzensee, criticizes the substitute prison sentences not only for financial reasons. “These people don’t belong here. They need to be taken outside the walls to get their lives in order,” he says.

The traffic light coalition wants to reform the rules on substitute imprisonment.

Bushman wants mandatory defence strengthen

The federal government has recognized the problem and has launched a reform proposal. But the aim is only to halve the substitute detention. In the ARD-Interview, Minister of Justice Marco Buschmann now goes beyond that: One can discuss whether to expand the cases of mandatory defense. “You have to look at that in detail,” said the FDP politician. However, this would probably entail considerable costs.

A defense attorney might have done Marcel S., the convict at the Berlin fast court, good. Because he could have asserted that the repeated driving without a ticket was the result of an emergency: S. has been receiving medical treatment for some time because of his drug addiction.

He couldn’t always afford the monthly ticket for the daily trip across Berlin to the doctor. So he became a repeat offender when driving without a ticket – and the penalties kept getting higher. A good lawyer would probably have sought a way out of this spiral with the court.

The ARD documentary “poor and rich in court” will be shown tonight at 10:50 p.m. on the first.

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