Order of the presiding judge of the 5th Criminal Senate
Also on 07.05.2025, the presiding judge of the 5th Criminal Senate decided the application to release lawyer Römer from his duties as court-appointed defence counsel (Entpflichtung) and the issue of access to the case file. The application to revoke the appointment of defence counsel (Pflichtverteidiger) was refused; the applications for access to the case file were likewise refused.
Commentary — assessment by Dmitry Bagrash
This order is the subject of the second constitutional complaint. In my view, the effective absence of a defence, the failure to disclose defence counsel’s statement, and the obstruction of access to the case file were not assessed in a constitutionally sustainable manner.
Federal Court of Justice. Order of 7 May 2025. In the criminal case against Dmitry Bagrash of Berlin, born on 9 May 1968 in Moscow (Russian Federation), for attempted murder and other offences. Case reference 5 StR 72/25.
On 7 May 2025, the presiding judge of the 5th Criminal Senate of the Federal Court of Justice ordered: 1. The defendant’s application of 17 December 2024 to revoke the appointment of lawyer Römer as court-appointed defence counsel is refused. 2. The defendant’s applications for access to the case file are refused.
Reasons
1. In its judgment of 22 July 2024, the Berlin Regional Court I convicted the defendant of attempted murder, among other offences, and imposed an aggregate sentence of five years and four months’ imprisonment. Lawyers Römer, Mumm and Jochmann, appointed to defend the defendant, lodged an appeal on points of law (Revision) against that judgment within the deadline. By order of 12 September 2024, the Regional Court revoked the appointments of Mumm and Jochmann as defence counsel. After service of the judgment on 28 October 2024, the remaining appointed defence counsel, lawyer Römer, stated the grounds of appeal on 28 November 2024 by raising a challenge on substantive-law grounds (Sachrüge) and procedural challenges.
On 10 December 2024, the defendant applied for access to the case file, among other things, so that he could “properly ... state the grounds of ... or supplement” the appeal on points of law. He repeated this request subsequently.
By letter of 16 December 2024, the defendant terminated his retainer with lawyer Römer “without notice” and revoked the power of attorney granted to him “with immediate effect”. On 17 December 2024, he stated to the legal applications office (Rechtsantragstelle) at Moabit Prison (JVA Moabit) that he wanted lawyer Römer to be released from his appointment and applied for him to hand over all documents relating to his proceedings. As grounds, he stated that since pronouncement of the judgment, he had no longer been able to contact lawyer Römer “in an appropriate manner”. He had received the copy of the grounds of appeal only on 6 December 2024 — thus after expiry of the deadline for stating the grounds — and therefore could not supplement it. This had caused a breach of trust. In a further letter of 13 February 2025, the defendant stated that he no longer wished to be represented by lawyer Römer “under any circumstances”.
2. Because this is a case of mandatory defence under § 140 Abs. 1 Nr. 1 and Nr. 2 StPO, revocation of appointed defence counsel without a replacement is not an option. Revocation of a power of attorney by the defendant does not affect the court’s appointment of defence counsel. However, the requirements for replacing appointed defence counsel are not met either.
a) Under § 143a Abs. 2 Satz 1 Nr. 3 StPO, the appointment of defence counsel must be revoked and new defence counsel appointed if the relationship of trust between counsel and defendant has been definitively destroyed or, for another reason, an appropriate defence is not guaranteed. The standard for a disruption of the relationship of trust is the perspective of a reasonable defendant. Such a disruption must be substantiated by that defendant or defence counsel (BGH, order of 26 June 2024 – StB 35/24 Rn. 14).
b) Measured against this standard, the defendant’s submissions do not reveal the “breach of trust” he assumes. A serious or repeated breach of duty that might indicate definitive destruction of the relationship of trust has neither been set out nor is otherwise apparent.
aa) There was no breach of duty in lawyer Römer’s contact with the defendant between pronouncement of the judgment and expiry of the deadline for stating the grounds of appeal, even assuming the defendant’s submissions to be correct. The defendant has not substantiated that, during their contacts on at least two occasions, he was unable adequately to discuss his concerns about the appeal lodged.
bb) No breach of duty by defence counsel in drafting and filing the grounds of appeal is apparent either. According to lawyer Römer’s statement of 7 January 2025, the appeal and its grounds were discussed with the defendant, who had the opportunity to influence their preparation and present his “starting points” and “comments” during a personal conversation of approximately two hours, two detailed telephone calls, and in writing after the draft grounds of appeal had been sent to him. The grounds for the present application do not show that more extensive consultation between defence counsel and the defendant was required which lawyer Römer might have frustrated.
cc) The possibility that not all of the defendant’s suggestions were included in lawyer Römer’s grounds of appeal does not make his conduct a breach of duty. Under § 345 Abs. 2 Alt. 1 StPO, admissibility of grounds of appeal requires defence counsel to contribute to shaping them and to assume responsibility for their entire content (BGH, judgment of 2 August 1984 – 4 StR 120/83, NStZ 1984, 563). This excludes defence counsel allowing a defendant unfamiliar with the law to prescribe manifestly hopeless grounds of challenge, or raising them merely at the defendant’s request.
dd) The fact that lawyer Römer sent the defendant the final grounds of appeal only after expiry of the deadline under § 345 Abs. 1 StPO is likewise not conduct demonstrating a breakdown of the relationship of trust. Nor was the defendant thereby prevented from presenting his legal supplement, as can be seen from the numerous submissions, including those entered on the record of the registry.
c) Other grounds for release from the appointment are neither apparent nor have been raised. A change of appointed defence counsel is also excluded because the defendant neither named another defence counsel for the appeal instance nor observed the one-week deadline under § 143a Abs. 3 Satz 1 StPO.
3. The defendant’s applications for access to the case file had to be refused as unfounded. A defendant represented by defence counsel does not personally have a right of access to the case file under § 147 Abs. 4 StPO (see KK-StPO/Willnow, 9. Aufl., § 147 Rn. 14).
Cirener. Lower court: Berlin Regional Court I, 22.07.2024 – (522 Ks) 176 Js 4/22 (5/23). Issued: senior judicial secretary acting as clerk of the court registry (Urkundsbeamtin der Geschäftsstelle).
Assessment — a sentence that proves the opposite
The decision grounds the refusal, among other things, on the claim that I was not prevented from presenting my own supplements — “as can be seen from the numerous submissions, including those entered on the record of the registry”.
In my assessment, the very circumstance in dispute is thereby made into proof of its opposite. Before 07.05.2025, the registry demonstrably refused to take my submissions on several occasions: on 15.01.2025 (No. 15), on 24.02.2025 (No. 24), on 14.03.2025 (No. 26) and on 18.03.2025 (No. 29). What was actually entered on the record got there not because of this practice but despite it — and in part only after I began a hunger strike.
The second point concerns access to the case file: it was refused under § 147 Abs. 4 StPO because I had defence counsel. The same order refuses the application to release that same counsel from his appointment. Taken together, this means: the defence counsel with whom I had no contact remains appointed — and because he is appointed, I do not receive the file.
Document source
Order of the presiding judge of 07.05.2025: Beschluss_Vorsitzende_07.05.2025.pdf
The constitutional complaint against this is documented in full under F1-045: Verfassungsbeschwerde_gegen Beschluss der Vorsitzenden.pdf