Supplement to the grounds for the appeal on points of law (Revision), part 3, for the record

Tiergarten Local Court at Moabit Prison (JVA Moabit), before the judicial officer (Rechtspflegerin). Appeared: Mr Bagrash, Dmitry, register number 2796/22/6. Berlin, 05.05.2025. Via the Berlin Regional Court, file reference (522 Ks) 176 Js 4/22 (5/23), to the Federal Court of Justice, case reference 5 StR 72/25. 5 pages of the record.

Note on this version (as of 12.08.2026): the submission is reproduced in full, including the passages from the judgment of 22.07.2024 that it quotes. These quotations are the subject of the challenge: the submission demonstrates that the judgment attributes a function to a device that no expert could confirm. They therefore cannot be separated from the argument. Only what the court itself established in its judgment is reproduced — no information from expert reports or investigation files going beyond that.

Third part of the supplement to the appeal on points of law. I hereby submit my third supplement to the grounds for my appeal on points of law.

I. Introduction

This supplement addresses serious factual errors in the findings of the Berlin Regional Court’s judgment. The contradictions presented here concern the technical operation of the device referred to in the proceedings as USBV, the supposed ignition mechanism and the interpretation of the electronic components. It is argued that the judgment rests on assumptions that cannot be substantiated and thus violates the rule-of-law principles governing the assessment of evidence.

Under § 261 StPO, the court must derive its conviction from the trial as a whole and thus may not establish facts without sufficient evidence. The principle of “in dubio pro reo” (Art. 6 Abs. 2 EMRK) is likewise violated if contradictions and alternative explanations are not adequately considered.

II. Legal position and case law of the highest courts

1. Violation of the principle of free judicial assessment of evidence (§ 261 StPO). The assessment of evidence must rest on comprehensible and verifiable evidence. According to settled BGH case law, a conviction is impermissible where substantial doubts exist and have not been dispelled (BGH, judgment of 21.10.2020 – 6 StR 134/20). A speculative assumption is insufficient to support a conviction.

2. Violation of “in dubio pro reo” (Art. 6 Abs. 2 EMRK, § 267 Abs. 5 StPO). The judgment is based on hypothetical considerations and speculative conclusions, without sufficient certainty having been established as to the device’s purpose. The BGH has repeatedly made clear that a conviction may not rest on mere conjecture (BGH, judgment of 27.02.2004 – 2 StR 146/03). Where alternative explanations are possible, they must be considered in the defendant’s favour (BGH, judgment of 07.05.2003 – 5 StR 142/02).

3. Requirements for a challenge on substantive-law grounds (Sachrüge) (§ 344 Abs. 2 StPO). A challenge on substantive-law grounds is well founded where the findings in the judgment are not internally consistent or seriously disregard the results of the evidence. According to BGH case law (judgment of 23.11.2021 – 4 StR 318/21), contradictions within a judgment, particularly when refuted by expert reports, constitute a serious violation.

4. Erroneous interpretation of expert reports. The BGH has stressed that expert reports may not be interpreted one-sidedly in favour of the prosecution (judgment of 05.09.2018 – 2 StR 474/17). The BKA (Federal Criminal Police Office) expert, Dr Cox, established that, owing to the lack of oxygen, the device could not have burned for a prolonged period and therefore could not have caused substantial damage. She also established that the available volume of air would have been sufficient for initial ignition. Nevertheless, there were no signs of actual ignition, as shown by the intact condition of the matches.

Because judicial inactivity denied me access to the complete case file and I also have no contact with my lawyer, I cannot quote Dr Cox verbatim. Nevertheless, it is clear that her findings do not accord with the court’s assumption that an ignition attempt was made.

5. Requirements for proving that the defendant committed the act. The chamber finds, without unequivocal evidence, that the defendant operated the timer-operated igniter. Yet the judgment contradicts itself as to whether electronic control was actually present. According to BGH case law (judgment of 17.03.2015 – 3 StR 4/15), a conviction may not be based on an assumption that the defendant considered commission of the act “probable”; concrete evidence must exist.

III. Facts and challenge on substantive-law grounds (Sachrüge)

1. Incorrect assumption of an ignition attempt. The court asserts that an ignition attempt took place and that the device was intended to be set alight. Quotation from the judgment: “…the incendiary device did not function, however, because either the electronics already failed to operate as intended, or at least the oxygen supply in the shaft was too low to keep a fire burning in such a way that it could have set the building alight.” (P. 15, line 29) And (p. 35, line 1): “After operating the timer-operated igniter, the attempt was complete from the perspective of the defendant, who then left the scene.”

Actual facts: according to the investigation files, the device lay untouched in the shaft from 24.04.2022 to 06.05.2022. After that time, the matches serving as the igniter should have become unusable through dampness — yet there are no traces of an ignition attempt. The BKA expert confirmed that the device could not burn because it was in an area with little air.

Contradictory quotations from the judgment: “He activated the timer-operated igniter and placed the incendiary device in the basement shaft on the right when viewing the building from above.” (P. 14, line 31) · “However, in view of the other results of the taking of evidence, the chamber had no doubt that this switch was operated by the defendant to start the timer circuit.” (P. 28, line 17) · “The BKA expert, Ms Cox, testified that the USBV could not burn for long and that the petrol would not have burned because of the lack of oxygen.” (P. 15, line 34)

The court’s assumption that a lack of oxygen prevented an open fire contradicts the fact that no ignition attempt took place. Conclusion: The finding of an ignition attempt is not supported by evidence but is based on speculation.

2. Purpose of the installed electronics. The court asserts that the electronics served as a timer-operated igniter and allowed remote control. Quotations from the judgment:

“Allowed switching delayed by a predetermined period of a few hours and served as a timer-operated igniter.” (P. 14, line 17)

“A small switch could be seen above the outer right-hand battery, from which it could be concluded that this assembly was a timer-operated igniter with a predetermined period of a few hours, of a kind otherwise known in connection with commercially available string lights.” (P. 28, line 13)

Actual facts: according to the expert reports, the purpose of the handmade components could not be established. No expert could determine with certainty whether it was a timer or remote control. The judgment asserts, without an evidential basis, that it was a timer circuit with a delay of a few hours. The assertion that remote control was activated is supported neither by witness testimony nor by technical expert reports.

It was merely conjectured that, logically, it might be a timer or remote control. It was only the judge who found in the judgment that it was actually a timer and also remote control. How did the judge determine that this timer was supposed to trigger within a few hours? How did he determine that remote control was also present and that I activated it in the morning?

This is contradicted by the statement in the same judgment (p. 29, line 11): owing to the destruction of most of the device, the expert cannot confidently assess, from a purely technical perspective, whether or not the device is a dummy. Conclusion: These assumptions are based on pure speculation rather than objective investigation results.

3. Condition of the battery. The court assumes that the defendant used the battery to activate the device. Quotation from the judgment:

“Immediately after recovery of the USBV, a suitable 9-V block battery was found lying in front of him, which had apparently fallen off the clip in the course of lifting out the USBV.” (P. 28, line 25)

Actual facts: according to the experts, the battery was discharged. There was no mechanism that would explain energy consumption. A relay prevented the battery from discharging if the device was not activated. There is no evidence that the defendant installed an operational battery. Conclusion: The assumption that the defendant actively used it contradicts the technical findings.

IV. The proceedings have no subject matter

1. Absence of actual danger (§§ 22, 23, 306a StGB). The prosecution relies on the allegation of attempted arson. According to settled BGH case law (judgment of 18.10.2017 – 5 StR 164/17), arson must be capable of causing substantial danger to life and limb. Because the device could not have burned, this requirement is absent.

2. No proof of an ignition attempt (§ 22 StGB). For an attempted offence, the perpetrator must at least have begun directly to commit the act. Since no ignition occurred and no traces of an ignition attempt are present, there is no direct commencement. The elements of an attempt are therefore already absent.

3. Violation of “in dubio pro reo”. Since the identified contradictions were not dispelled and alternative explanations exist, the court should have decided in the defendant’s favour (Art. 6 Abs. 2 EMRK; BGH, judgment of 15.11.2001 – 4 StR 68/01).

4. Rule-of-law considerations. Proceedings based on unsubstantiated assumptions, in which no actual danger existed, constitute impermissible criminal prosecution and violate Art. 20 Abs. 3 GG.

Conclusion: Criminal prosecution cannot rest on conjecture and contradictory interpretations of evidence. The factual situation should necessarily have led to discontinuance of the proceedings or acquittal.

V. Applications

1. Setting aside of the Berlin Regional Court’s judgment on account of serious factual and legal errors, particularly in the assessment of evidence and the erroneous interpretation of expert reports.

2. Discontinuance of the proceedings under § 206a StPO, because they are based on speculative assumptions and no actual danger existed.

3. In the alternative, remittal to a different criminal chamber.

4. Consideration of further challenges on substantive-law grounds to be submitted in the next supplements.

5. Granting of full access to the case file under § 147 Abs. 7 StPO, to enable a comprehensive defence and substantiated presentation of further challenges on substantive-law grounds.

At the same time, I maintain the demands and applications made in the supplements of 20.01.2025 and 28.02.2025. This supplement focuses exclusively on the issue of the device and the erroneous assessment of evidence in that connection; further supplements will follow.

Read, approved, signed. Closed: judicial officer (Rechtspflegerin).