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DRAFT — NOT TO BE SUBMITTED PERSONALLY. Working draft for review, supplementation and signature by an authorised lawyer. Without a lawyer's signature or a declaration recorded by the court registry (§ 366 Abs. 2 StPO), an application to reopen the proceedings does not satisfy the required form.
[Letterhead of the instructed lawyer]

To the Landgericht Berlin I (Berlin Regional Court I)

— Chamber responsible for sentence enforcement or competent criminal chamber —
Turmstraße 91, 10559 Berlin

Case references: 522 Ks 5/23 (LG Berlin I) — 176 Js 4/22 (GStA Berlin)
Order (correction) of 30.07.2025

In the criminal case

concerning Dmitry Bagrash, born on 09.05.1968 in Moscow/Russian Federation, currently held at Justizvollzugsanstalt Heidering (Heidering Prison), prisoner record no. 327/25-7,

on behalf of and under the authority of the convicted person, the following applications are made:

  1. Reopening is sought of the criminal proceedings finally concluded by the judgment of the Landgericht Berlin I of 22.07.2024 (case reference 522 Ks 5/23).
  2. In the alternative, a finding is sought that the order of 30.07.2025 (the “correction order”) is ineffective because it altered the substantive content of the judgment after it became final.
  3. A stay of enforcement of the judgment is sought pending a decision on this application (§ 360 Abs. 2 StPO).

Grounds

I. Facts

By its judgment of 22.07.2024, the Landgericht Berlin I convicted the applicant of attempted murder, among other offences, and imposed an aggregate prison sentence of five years and four months. Contrary to § 260 Abs. 5 Satz 1 StPO, the written judgment did not contain a complete list of the criminal provisions applied.

By an order of 07.05.2025 (case reference 5 StR 72/25), the Bundesgerichtshof (Federal Court of Justice) dismissed the applicant's Revision (appeal on points of law) against that judgment — thus against a judgment lacking the statement of applicable provisions required by § 260 Abs. 5 Satz 1 StPO.

On 30.07.2025 — 373 days after pronouncement of the judgment and after it had become formally final — the Landgericht Berlin I issued an order described as a “correction order”, inserting an extensive list of applicable criminal provisions (§§ 211, 248c, 263a, 303, 306a, 306c, 22, 23, 49, 52, 53, 73 StGB) into the operative part of the judgment for the first time. An “obvious clerical error” was given as the reason.

By an order of 31.10.2025 (case reference 3 Ws 48/25 + 49/25), the Kammergericht Berlin (Berlin Higher Regional Court) dismissed the applicant's complaint against that order at the admissibility stage, reasoning that the convicted person's adverse legal position arose solely from the findings on guilt and legal consequences, rather than from the subsequently inserted list of criminal provisions. Consequently, there was no substantive examination of whether such a subsequent addition was permissible at all after the judgment became final.

II. Legal assessment

1. Violation of the finality of the judgment and the principle of legal certainty. A judgment acquires substantive finality once the periods for legal remedies have expired or the available remedies have been exhausted. This finality extends to the entire content of the judgment, including the legal bases to be stated under § 260 Abs. 5 StPO, as these are constitutive for review on points of law. According to the overwhelmingly prevailing view, correction of a final judgment is permissible only in the case of an obvious clerical or arithmetical error recognisable to anyone, which does not change the meaning of the decision (see Meyer-Goßner/Schmitt, StPO, § 267 Rn. 20 f. m.w.N.; BGH NStZ 1995, 200). Subsequently inserting a previously wholly absent list of applicable criminal provisions is not such a minor correction, but a substantive addition to the legal basis of the conviction.

The applicant submits that such a subsequent addition is incompatible with the constitutional requirement of legal certainty (Art. 103 Abs. 2 GG in conjunction with Art. 20 Abs. 3 GG) if made after the available remedies have been exhausted: on 07.05.2025, the Bundesgerichtshof had to decide on a judgment whose material legal basis had not been presented in full to the court reviewing the appeal on points of law.

2. Violation of the right to be heard (Art. 103 Abs. 1 GG). The applicant was not given an opportunity to comment before the correction order was issued. According to the applicant's account, contrary to § 306 Abs. 2 StPO, the complaint against the order was not forwarded without delay to the court responsible for deciding it.

3. The ground for reopening. Reopening finally concluded proceedings under § 359 StPO is subject to strict requirements. In the applicant's view, this case establishes a ground for reopening by analogy with § 359 Nr. 5 StPO (new facts or evidence), since only after the proceedings on the appeal on points of law had ended did it become known to what extent the version of the judgment presented to the Bundesgerichtshof differed from the version subsequently “corrected” unilaterally and without an opportunity to be heard. Reference is also made to the parallel application to initiate an investigation against the presiding trial judge on suspicion of Rechtsbeugung (perversion of justice, § 339 StGB); if those proceedings lead to a conviction, the ground for reopening under § 359 Nr. 3 StPO would apply.

III. Applications concerning the conduct of the proceedings

It is suggested that enforcement be stayed in advance (§ 360 Abs. 2 StPO), irrespective of the ultimate outcome of the reopening proceedings, because the doubts identified as to the validity of the basis of the judgment are substantial.

Annexes (to be supplemented by the instructed defence lawyer)

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