Defendants in German criminal proceedings must be assigned a lawyer (usually of their choice) by the trial court if the charges which they are facing lead to a statutory minimum sentence of one year of imprisonment, or once they have been detained on remand for three months, to name the most important cases. In addition, courts will assign a lawyer to other defendants if this seems necessary with a view to the gravity of the charges or the complexity of the factual or legal situation, § 140 Strafprozeßordnung (StPO, Code of Criminal Procedure).56 The state is liable for the fees of such lawyers, but the unsuccessful and solvent defendant may eventually have to bear the costs. Unfortunately, no statistical figures are available to the present author on this important area of legal aid as regards the number of defendants who are granted legal aid each year. A comparison undertaken by Blankenburg reveals, however, that in 1989/1990, 0.19 European Currency Units (1 ECU being worth just under 1 £ Sterling) were spent per head of population on criminal legal aid in West Germany, compared to 9.54 ECUs in England and Wales.57 This striking difference cannot be explained by different fees alone. Rather, it indicates that German law is more than thrifty when it comes to granting legal aid to defendants in criminal proceedings.
Indeed, in comparison with England and Wales, some criticism of the German system seems justified. For one, the vast majority of offenders cannot benefit from legal aid because they are charged with less serious offences, as only very serious crimes (such as murder, rape, armed robbery) carry a statutory minimum of one year imprisonment. In contrast, likelihood of a prison sentence in case the defendant is guilty is sufficient reason to grant legal aid in England under sec. 22 Legal Aid Act 1988; in practice, almost all defendants in the Crown Court are legally aided.58 Also, legal aid comes at a rather late stage in Germany. There is no German equivalent to the Duty Solicitor Scheme under sec. 58 Police and Criminal Evidence Act 1984, providing legal assistance to persons being questioned at police stations. In Germany, legal aid will often only operate after the state prosecution has decided to bring the case to court by a formal accusation (Anklage, somewhat similar to an indictment in English law). If the defendant is detained on remand, no legal aid is normally granted during the first and rather crucial three months of detention. It should also be mentioned that the fees payable under legal aid are lower than the normal statutory fees, so that lawyers who rely on legal aid cases for an income tend to work under dire conditions. Also, the fact that the courts have the final say on which lawyer should be assigned to the defendant - even if they must normally respect the defendant's choice - can create an unhealthy dependency which can influence the behaviour of counsel at court.59 All in all, legal aid given to defendants in criminal proceedings is a rather unsatisfactory area within Germany's record on access to justice. If such a comparison is permitted at all, the German legal aid in criminal proceedings resembles the National Health Service in Britain: less money is spent, staff are notoriously overworked and underpaid, other than very serious cases are low in priority, many cases are treated too late, and the rest of the clientele must rely on aspirin and their own resources. In spite of these shortcomings, however, reforming criminal legal aid seems to figure very low on the German political agenda.