The power of attorney for service plays an important role in German criminal procedure as it allows documents to be served not directly to the defendant but to a person designated by them. This is intended to speed up and simplify the procedure but also carries significant risks.
Especially for foreigners, who often lack knowledge of the legal consequences and make hasty decisions when appointing the agent, this can have fatal outcomes. In this article, I will discuss the legal basis of the power of attorney for service, its risks, and the specific issues for foreign defendants. I will also provide concrete practical recommendations.
The Legal Basis of the Power of Attorney for Service
In German criminal procedure, there are two forms of power of attorney for service: statutory power of attorney and legally granted power of attorney.
The statutory power of attorney for service is governed by § 145a StPO (German Code of Criminal Procedure) and primarily applies to lawyers whose power of attorney is on record. In such cases, the defendant cannot restrict or revoke the scope of the power of attorney. The aim of this regulation is to ensure the timely and proper service of documents to the attorneys and to speed up the procedure. This statutory power of attorney ends only with the final conclusion of the procedure or upon notification of the termination of the mandate.
In contrast, there is the legally granted power of attorney for service, which the defendant can voluntarily grant to a person of their choice. This form of power of attorney is particularly common among defendants without a fixed residence in Germany who want to facilitate the receipt of documents. Any legally competent person can be appointed as an agent, but the power of attorney must be granted in writing and can be limited to specific documents or phases of the procedure.
The Risks of the Power of Attorney for Service – Why Rash Decisions Can Be Fatal
A major risk of the power of attorney for service is that the deadlines for legal remedies begin to run as soon as the documents are served to the agent, regardless of whether the defendant is actually aware of it. This means that objections or appeals may be submitted too late because the defendant did not know about the service. This problem particularly affects foreign defendants who rely on the agent to forward the documents promptly.
Another risk lies in the appointment of unsuitable agents. It is not uncommon for defendants, out of ignorance, to appoint officials from investigative authorities or even police officers as agents. This is legally problematic and is viewed critically by the courts. For instance, the Berlin Regional Court has ruled that appointing officials from investigative authorities as agents raises legal concerns, as they are effectively on the side of the prosecution. Appointing such persons can lead to conflicts of interest and significantly weaken the defendant’s legal position.
Moreover, it should be noted that the validity of the power of attorney for service is not affected if the agent does not actually forward the documents. According to case law, it is the defendant’s own responsibility to regularly inquire with the agent whether any documents have been received. The European Court of Justice has emphasized in several rulings that it is reasonable to expect the defendant to regularly inform themselves about the status of the proceedings.
Special Caution for Foreign Defendants – Mistakes with Far-Reaching Consequences
For foreign defendants, the power of attorney for service is a particularly sensitive issue. Language barriers, lack of knowledge of German criminal procedure law, and physical distance make it considerably more difficult to respond promptly to served documents. The risk of missing important deadlines is therefore high.
According to case law, the agent must be known by name and easily identifiable to the defendant. In practice, however, it is evident that many foreign defendants underestimate the implications of their decision when appointing an agent. It becomes particularly problematic when the defendant has no means of regularly reaching the agent or when the agent does not fulfill their obligations properly. Typical examples include cases where the agent forwards the documents late or not at all.
Additionally, it must be noted that the power of attorney for service remains valid even if the defendant revokes the appointment but fails to notify the court properly. This means that the service is still considered legally effective, even if the appointed agent no longer acts as such.
Practical Recommendations for Foreign Defendants – How to Avoid Mistakes
My urgent advice as a lawyer specializing in criminal law is: Never just wait and see! Foreign defendants should regularly and actively inquire with their agent whether any documents have been received. It is not enough to trust that the agent will contact them on their own initiative.
The choice of agent should also be made with the utmost care. Ideally, a lawyer or someone familiar with German criminal procedure law and reliable should be appointed. Furthermore, the power of attorney for service should be formulated as concretely as possible to avoid misunderstandings and legal disadvantages.
Also, the possibility of reinstatement into the previous state should be considered. If a defendant demonstrably had no knowledge of the service, a request for reinstatement may be possible under certain conditions. However, this requires that the defendant has taken all reasonable steps to inform themselves about the status of the proceedings.
Conclusion – Granting the Power of Attorney for Service with Caution
The power of attorney for service is a double-edged sword: it can facilitate the procedure but carries significant risks if granted without careful consideration. Especially for foreign defendants, the danger is great that deadlines will pass unnoticed and defense rights will be lost. A careful choice of agent, regular inquiries, and a clear understanding of the legal consequences are therefore essential. Only in this way can it be ensured that the power of attorney for service does not turn into a trap.
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