To the Landgericht Berlin I (Berlin Regional Court I)

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

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:

Reopen the criminal proceedings finally concluded by the judgment of the Landgericht Berlin I of 22.07.2024 (case reference 522 Ks 5/23), on the basis of new facts and evidence pursuant to § 359 Nr. 5 StPO.

Grounds

I. Central premise of the prosecution case and judgment

The Staatsanwaltschaft Berlin (Berlin Public Prosecutor's Office), represented by senior public prosecutor Klaus-Michael Wachs, based its rejection of any involvement of foreign, particularly Russian, intelligence services in the incident at issue (USBV — improvised explosive and incendiary device, Lepsiusstraße 103, May 2022) principally on the following reasoning: if foreign intelligence services had actually planted the applicant as a suspect, they would have had an evident interest in passing his name to the German investigating authorities, at least anonymously. As this had reportedly not happened according to the case file, involvement of intelligence services was to be ruled out as an explanation. On that basis, the separate investigation into the arson attack on the applicant's vehicle was discontinued without substantive examination of the involvement of Russian bodies.

II. New facts

1. Naming by local residents immediately after the discovery. After the device was discovered on 6 May 2022, residents of Lepsiusstraße named the applicant to the press as a person who might be responsible. This prompt, publicly documented naming contradicts the prosecution's central premise that nobody, even anonymously, had mentioned the applicant's name in connection with the act. As far as the applicant can ascertain, these press assertions were not addressed at the trial.

2. OSCE statement of 8 April 2022. On 8 April 2022 — almost four weeks before the incident — the Russian delegation to the Organization for Security and Co-operation in Europe (OSCE) expressly named the applicant and the organisation he headed, Unkremlin e.V., as a politically disruptive organisation. This contradicts the assessment expressed in the judgment and during the investigation that the applicant's political activity had been “entirely insignificant”.

3. Failure to consider these matters in the proceedings. According to the applicant's account, neither the press reports naming him through local residents nor the OSCE statement of 08.04.2022 were discussed at trial or assessed in the reasons for the judgment. According to the applicant's account, senior public prosecutor Wachs (OStA) expressly denied that any such naming had occurred.

III. Legal assessment

Under § 359 Nr. 5 StPO, reopening finally concluded criminal proceedings is permissible if new facts or evidence are produced which, alone or in conjunction with the evidence previously taken, are capable of establishing grounds for acquittal of the accused or a substantially lesser punishment.

In the applicant's view, the facts set out here are capable of undermining the principal reasoning of the prosecution and the court — rejecting any involvement of foreign intelligence services because the applicant had not been named. If residents had already named the applicant to the press immediately after the incident, and the OSCE statement of 08.04.2022 demonstrates that the applicant's political activity was by no means insignificant, the factual basis on which the investigating authority rested its central exclusion hypothesis falls away.

The applicant points out that the novelty of these facts within the meaning of § 359 Nr. 5 StPO is to be understood in relation to their judicial assessment: the press reports and OSCE statement were publicly available but, as far as can be ascertained, were not introduced at trial and were therefore not assessed by the court. The instructed defence lawyer is asked to examine whether and to what extent this supports admissibility under the stricter requirements of case law on the “novelty” of evidence (see Meyer-Goßner/Schmitt, StPO, § 359 Rn. 32 ff.), and whether a written declaration in lieu of oath from the residents or the procurement of the press articles and OSCE document should be included as evidence.

IV. Proposed evidence

• Press reports naming the applicant through residents of Lepsiusstraße (to be obtained)
• OSCE document no. 519702 of 17.04.2022
• OSCE document no. 499582
• Examination of the residents concerned as witnesses
• Obtaining the investigation file in the discontinued proceedings concerning the arson attack on the applicant's vehicle