What is the parole fee
from StRR 2010, 93
(I would like to thank the editorial staff of "StRR" for the kind permission to post this article from "StRR" on my homepage.)
Legal remuneration in the execution of sentences
by lawyer Detlef Burhoff, RiOLG a.D., Münster / Augsburg
BRAGO rewarded the lawyer’s work in criminal enforcement proceedings only by paying a fee in accordance with Section 91 No. 1 or No. 2 BRAGO. In practice, this had resulted in inappropriately low fees, especially when oral hearings were held in connection with the release of the convicted person and were attended by the defense attorney. In order to ensure an appropriate defense or representation of the convicted in criminal enforcement matters, the RVG now provides in Part 4 Section 2 VV RVG in nos. 4200 ff. VV RVG special "fees in the enforcement of sentences". These are intended with the following explanations are presented (see also Burhoff RVGreport 2007, 8).
I. Personal scope of part 4 section 2 VV RVG
The fees of Part 4 Section 2 VV RVG (No. 4200 ff. VV RVG) are available to both the Election attorney as well as that court ordered or associate Lawyer too. In criminal enforcement proceedings, a defense attorney is provided in Section 463 (3) sentences 4 and 5 of the Code of Criminal Procedure in preparation for the decisions under Section 67d (2) and (3) of the Criminal Code. In addition, a defense attorney can be considered if the difficulty of the factual and legal situation or the inability of the convicted person to properly exercise his rights requires this (cf., inter alia, OLG Hamm StraFo 2000, 32 = NStZ-RR 2000, 113; StraFo 2001 , 394 = StV 2002, 320; KG StraFo 2002, 244; OLG Jena StV 2003, 684; see also Meyer-Goßner, StPO, 52nd edition, 2009, § 140 Rn. 33 fmwN; now also Burhoff, Handbuch for the criminal investigation, 5th edition, 2009, marginal number 1217a ff.).
The legal effect of the Appointment of public defenders for the Main proceedingsends with the finalgraduation this procedure. It does not extend to penal enforcement proceedings (Meyer-Goßner, op. Cit .; Burhoff, EV, 1217b with further references). Therefore, the defense attorney who was assigned in the main proceedings must expressly request his assignment for the criminal enforcement proceedings, if he is active there.
II. Scope of the regulation of Part 4 Section 2 VV RVG
Part 4 Section 2 VV RVG applies to defense counsel's activity in the execution of sentences. This means the lawyer who has been entrusted with the overall defense in this area. If the lawyer is only commissioned with individual activities in the execution of sentences, Part 4 Section 3 VV RVG applies (see IV below). In the case of the solicitor, the scope of the assignment is decisive for the delimitation from the individual activity, and in the case of the public defender that of the judicial assignment. Here, too, full representation or assignment is to be assumed, as a rule, the order or assignment is therefore not only given for a single date or for the production of a specific brief (as applicable OLG Schleswig RVGreport 2005, 70 = AGS 2005 , 120 = JurBüro 2005, 25 = StV 2006, 206; OLG Frankfurt NStZ-RR 2005, 253 = AGS 2006, 76; KG RVGreport 2005, 102 = NStZ-RR 2005, 127 = JurBüro 2005, 251 = AGS 2005, 393; OLG Jena AGS 2006, 287 = RVGreport 2006, 470; loc. Apparently AG Koblenz JurBüro 2007, 86).
Each separateEnforcement proceedings represents aseparatematter i.S. of § 15 RVG. Therefore, in several consecutive revocation procedures, the fees of Part 4 Section 2 VV RVG arise again and again (Burhoff in: Burhoff (Hrsg.), RVG Straf- und Fündsachen, 2nd edition, ABC- Part: Matters [§§ 15. ff.], Margin no. 26; Burhoff in: Gerold / Schmidt, RVG, 18th ed., Preliminary 4.2. Margin no. 4; N.Schneider in: Hansens / Braun / Schneider, Praxis of the law on remuneration, 2nd edition, part 15, marginal 740). The same applies to the review procedure according to § 67e StGB (OLG Schleswig, loc. Cit .; see also KG, loc. Cit.).
2. Concept of execution of sentences
Fees according to Part 4 Section 2 VV RVGat the earliestfromLegal force of the judgment (OLG Hamm StRR 2009, 39 = RVGreport 2009, 149). What is to be understood by "execution of sentences" results from the StPO. There, in the 1st section of the 7th book, the activities of the defense lawyer falling under the term “execution of sentences” are summarized. Thereafter, the following applies to the area of application (see also Burhoff / Volpert, RVG, preliminary remarks 4.2 Rn. 3 ff.):
- The execution of sentences includes all measures and orders that relate to the enforcement that of one Criminal courtenacteddecisions are directed. What is meant is not only the execution of sentences in the narrower sense, but also other measures and orders aimed at the implementation, modification, temporary or final annulment of the decision issued by a criminal court (see e.g. §§ 453a and 453b).
- Also the procedures regulated in §§ 453, 463 StPO revocation one Parole for probation or revocation the suspension one Measure the Mending and securing for granting are included in the scope of part 4 section 2 VV RVG (arg. e no. 4300 item 3 VV RVG).
Also the enforcement of decisions against Teenagers and Adolescents is covered by Part 4, Section 2 of the VV RVG (Burhoff / Volpert, RVG; Preliminary 4.2 marginal no. 7).
Part 4 Section 2 VV RVG therefore only applies if the defense lawyer acts in accordance with these regulations in the context of the execution of criminal sentences and criminal measures. Thereforeapplies the section Notif a court decision in the OWiG (cf.part 5 VV), administrative and coercive detention in criminal and fines matters (cf.previous 4.1 VV RVG and part section 3 VV RVG) or a disciplinary measure in accordance with the disciplinary laws (part 6, section 2 of the VV) is enforced. Part 4 Section 2 VV RVG does not apply to the procedure after Section 27 JGG. It is not a matter of the enforcement of sentences within the meaning of Part 4, Section 2 of the VV RVG, as there is no criminal decision to be enforced (Burhoff / Burhoff, RVG, ABC part: Matters [§§ 15 ff.]; Margin no. 21). Rather, the original investigation procedure is continued with the result that the lawyer receives an additional appointment fee for the main hearing in accordance with Part 4 Section 1 VV RVG for participating in the further appointment.
Part 4 Section 2 VV RVG also applies Not for activities of the lawyer in Penal system. This section is not the enforcement of sentences within the meaning of of the RVG (Burhoff / Volpert, RVG, preliminary 4.2 marginal no. 8). Activities of the lawyer in proceedings under the Prison Act are covered by Part 3 VV RVG (cf. Burhoff / Burhoff, ABC Part: Proceedings under the Prison Act).
3. The procedures covered by Part 4 Section 2 VV RVG
The RVG divided the procedures in which fees may arise in the execution of sentences, in twogroups. These are, on the one hand, the particularly significant proceedings of No. 4200 VV RVG and, on the other hand, the other proceedings of No. 4204 VV RVG. These are dealt with in the same way with regard to the charges and general questions. The only differences are in the amount of fees.
To the significantProcedure of No. 4200 VV RVG (cf. for details Burhoff / Volpert, RVG, No. 4200 VV Rn. 3 ff.):
- the completion or suspension of the measure of Accommodation (Section 1),
- a) in preventive detention,
- b) in a psychiatric hospital,
- c) in a rehab facility,
- the suspension of the rest of an early Imprisonment or a life sentence (No. 2),
- the revocation one Parole for probation or the revocation of the suspension of a measure of reform and protection for probation (No. 3).
To the otherProcedure No. 4204 VV RVG include e.g. (cf. also Burhoff / Volpert, RVG, No. 4204 Rn. 2 et seq.)
- Procedure for suspending a Professional ban for probation or to revoke the suspension of a ban on probation,
- Procedure over subsequentdecisions about a warning with reservation of punishment (cf. §§ 56 ff., 58, 59 a, 59 b StGB, 453 para. 1 StPO,
- Procedure over Objections against decisions of the enforcement authority according to §§ 459a, 459 c, 459h StPO,
- Process for the subsequent formation of a Total penalty according to § 460 StPO,
- but also procedures / applications for early Repeal one Lock for the reassignment of the driving license, among others (Section 69 a (7) StGB)
- Procedure according to Section 35 BtMG on the postponement of the execution of a sentence.
III. The individual fees
1. Procedure and appointment fee
The fee facts in Part 4 Section 2 VV RVGcorrespond the (general) structure the criminal procedural fees in Part 4 of the VV RVG. The defense attorney therefore receives grds. Procedure- andAppointment fee (see nos. 4200, 4202 VV RVG; nos. 4204, 4206 VV RVG).
A Basic charge (cf. No. 4100 VV) does not arise for the lawyer in the execution of sentences. This is not provided for in Part 4 Section 2 VV RVG. The system of the VV RVG prohibits recourse to the basic fee of No. 4100 VV RVG (cf. KG RVGreport 2008, 463 = RVGprofessionell 2008, 212 NStZ-RR 2009, 31 = JurBüro 2009, 83 = StRR 2009, 156; OLG Schleswig RVGreport 2005, 70 = AGS 2005, 120 = JurBüro 2005, 252 = StV 2006, 206; LG Berlin AGS 2007, 562 = StRR 2007, 280).
For the Compensation area the general rules apply to the resulting fees. The Procedural fee thus arises for the operation of the business in the enforcement of sentences (cf. preamble. 4 para. 2 VV RVG; on this in general Burhoff / Burhoff, RVG, preamble. 4 VV Rn. 31 ff .; Burhoff RVGreport 2004, 127 ff .; ders. RVGreport 2009,; see also Burhoff / Volpert, RVG, No. 4200 VV marginal 11). The fee arises with the first activity of the lawyer, which is aimed at the execution of the order. As a rule, this will be the recording of information.
The Appointment fee arises for participation in a judicial appointment (preliminary draft 4.1, paragraph 3 VV RVG; general Burhoff / Burhoff, loc. cit .; preliminary draft 4 VV RVG Rn. 56 ff .; Burhoff, RVGreport 2004, 177). There is no appointment fee for participating in other appointments. The effort is paid for with the procedural fee. The mere presence of the lawyer in the appointment is sufficient for the fee to arise. For example, he does not need to have submitted any applications or commented on certain questions. It is also irrelevant whether the convicted person was present. After preliminary. 4 para. 3 sentences 2 and 3 VV RVG, the lawyer receives the appointment fee even in the event of a so-called missed appointment. The lawyer takes on in criminal enforcement proceedings the sameInstance atseveraljudicialAppointments part, the appointment fee arises according to the legal regulation justonce (KG RVGreport 2006, 353 = AGS 2006, 549; OLG Hamm RVGreport 2007, 426 = AGS 2007, 618 = AGS 2008, 176; OLG Schleswig SchlHA 2006, 300 atDöllel / Dreßen; LG Osnabrück Nds.Rpfl. 2007, 166). A regulation similar to that for the appointment fees regulated in Part 4 Section 1 VV RVG, according to which the appointment fee is incurred for each day of the main hearing, has not been made in Part 4 Section 2 Defense Counsel. It therefore remains with the principle set out in Section 15 (2) RVG that the fee can only be claimed once in the same matter in each instance. This corresponds to the regulation for the appointment fee in the procedures covered by Part 3 VV (cf. BT-Drucks. 15/1971, p. 212;).
The text the regulation and the system leave aotherinterpretationNot to. However, it is questionable whether this corresponds to the actual will of the legislature. Because one can hardly assume that the legislature wanted to adjust the appointment fee in the execution of penalties for the observance of several appointments of the appointment fee according to Part 3 VV RVG. Rather, the same rules should be made in terms of content for the model and for the criminal enforcement proceedings. But that didn't work.
2. Special fee for the complaints procedure
After preliminary. 4.2 VV RVG is available to the lawyer in the proceedings via the complaint against the decision on the main issue, the fees of Section 2 especially. The activities performed in this respect are therefore not, unlike the other criminal complaints procedure, due to the flat-rate nature of the fees, the fees in the main proceedings are also compensated for (OLG Frankfurt NStZ-RR 2005, 253 = AGS 2006, 76; OLG Schleswig SchlHA 2006, 300 beiDollel / Dreßen; LG Düsseldorf AGS 2007, 352) .All fees listed in section 2 apply to work in the appeals authority. There may be procedural and appointment fees (cf. also Burhoff / Volpert, RVG, preliminary remark 4.2 marginal number 22).
example (according to Burhoff / Volpert, RVG, preliminary 4.2 VV marginal 24):
Lawyer R is commissioned to represent convicted V in the proceedings on the suspension of the remainder of the imposed life imprisonment in accordance with Section 57a of the Criminal Code. According to Section 454, Paragraph 1, Clause 3 of the Code of Criminal Procedure, the Penal Enforcement Chamber determines a date for an oral hearing of the convicted person. R attends the hearing. After the hearing, the Penal Enforcement Chamber rejects the request to suspend the remainder of the sentence. V instructs R to file a complaint against the decision, Section 454 (3) of the Code of Criminal Procedure. R files a complaint against the decision and justifies it. After another oral hearing of the convicted person with the participation of the defense counsel, the appellate court rejects the suspension. The criteria of Section 14 (1) RVG are average.
Billing of fees
Proceedings before the Penal Enforcement Chamber
Procedural fee No. 4201 VV RVG (No. 4200 No. 2 VV RVG with surcharge)
Appointment fee No. 4203 VV RVG (No. 4202 VV RVG with surcharge)
Proceedings before the appellate court
Additional procedural fee as (complaint) procedural fee No. 4201 VV RVG in conjunction with preliminary remarks. 4.2 VV RVG
Appointment fee No. 4203 VV RVG (No. 4202 VV RVG with surcharge)
Flat-rate expenses no. 7002 VV RVG
The fees arise in particular but only in oneComplaints procedurethat against the decisionin the main is directed.If it is not the main decision of the court but a "subsidiary decision" that is challenged, the attorney's activity is covered by the first-instance procedural fee rejects the remainder of a custodial sentence (Section 454 (3) of the Code of Criminal Procedure).
No complaint against a decision on the main issue is, for example, the one against the decision to fix costs issued in the criminal enforcement proceedings. The defense counsel does not receive the fees according to Part 4 Section 2 VV specifically, but according to Part 3 VV RVG (Preamble 4, Paragraph 5, Item 1 VV RVG).
It is controversial whether the flat rate postage fee No. 7002 VV RVG will also arise again in the complaint procedure. This is denied by the LG Düsseldorf (AGS 2007, 352), the OLG Braunschweig (RVGprofessionell 2009, 83 = StRR 2009, 203 (Ls.) = StraFo 2009, 220 = AGS 2009, 327 m. Abl. Note Volpert) and from Higher Regional Court Schleswig (SchlHA 2006, 300 bei Döllel / Dreßen), however, denied (see also Burhoff / Volpert, RVG, preliminary remark 4.2 marginal number 26).
IV. Activities in the execution of sentences as individual activities
If the lawyer is only commissioned with individual activities in the execution of sentences, the following applies Part 4 Section 3 VV RVG (For details, see the commentary on Part 4 Section 3 VV RVG at Burhoff / Volpert, loc. cit.). Here, too, the RVG provides for two groups of activities. A procedural fee arises for the preparation or signature of a document in proceedings under Sections 57a and 67e of the Criminal Code No. 4300 section 3 VV and a procedural fee for other activities in the execution of sentences No. 4301 Section 6 VV. If the lawyer takes part in a hearing, the fee according to No. 4301 No. 4 VV RVG is incurred for the assistance at the appointment. After preliminary. 4.3 Para. 3 Clause 2 VV RVG, the complaint procedure is also a special matter (for the delimitation of the individual activity in the execution of sentences from the full defense see OLG Schleswig RVGreport 2005, 70 = AGS 2005, 120 = JurBüro 2005, 25 = StV 2006, 206 ; OLG Frankfurt NStZ-RR 2005, 253 = AGS 2006, 76; KG RVGreport 2005, 102 = NStZ-RR 2005, 127 = JurBüro 2005, 251 = AGS 2005, 393; OLG Jena AGS 2006, 287 = RVGreport 2006, 470) .
V. Amount of fees
For the election attorney are Amount frame , for the public defender Fixed price fees provided (because of the amount limits, see the table in Burhoff / Volpert, RVG, preliminary remark 4.2 marginal number 31).
The fees arise with Surchargewhen the client Not on freefoot (cf. preamble. 4 para. 4 VV RVG; on this Burhoff / Burhoff, RVG, preamble 4 VV margin no. 83 ff.), which will often be the case. The general rules apply (cf. general on the liability surcharge Burhoff StRR 2009, 174; the other, StRR 2007, 54).
In the Rating of the election attorney fee are thecriteria of Section 14 (1) RVG to be taken as a basis (cf. Burhoff / Burhoff, RVG, ABC part, framework fees [§ 14]). The most important factors are the extent of the legal work and the difficulty of the work. This means that the lawyer must ensure that he carefully explains the amount of time he has invested. In the assessment, however, the significance of the procedure in which the lawyer has acted (see above II, 3) can no longer be relevant. This is because its importance has already been taken into account when it comes to the question of which charges are to be used as a basis. The fee in “other proceedings” cannot be reduced (again) on the grounds that the proceedings are not so important. In this respect, a "fee lawDouble exploitation prohibition.
VI. Approval / determination of a flat fee (Sections 51, 42 RVG
Even after the introduction of the independent fee regulation for the execution of a sentence, the defense attorney who has been assigned by the court in the execution of a sentence can receive aFlat fee Approved if the statutory fees with regard to the activity performed by him are still Notsufficient should be. The RVG has not changed anything in terms of the basic permissibility of a lump sum payment for the public defender. In this respect, the general rules then apply (cf. the comments in Burhoff / Burhoff, § 51).
For those involved in the execution of sentencesElection lawyer there is the possibility to have a flat fee determined according to § 42 RVG. The general rules apply (see Burhoff / Burhoff, RVG, § 42 Rn. 1 ff. Or the commentary on § 42 RVG at Gerold / Schmidt / Burhoff).
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