Complaints alleging a violation of the right to be heard, application for acceptance and declaration in lieu of oath
On 26.05.2025, several complaints alleging a violation of the right to be heard (Anhörungsrügen), an application for acceptance of those complaints and a declaration in lieu of oath (eidesstattliche Erklärung) were drawn up or filed. The list of annexes specifically names complaints against the Federal Court of Justice (BGH) order, the presiding judge’s order, and the failure to decide an immediate complaint (sofortige Beschwerde).
Commentary — assessment by Dmitry Bagrash
The declaration in lieu of oath of 26.05.2025 served as evidence of actual impediments and of the course of the refusal to take a submission on the record.
Dmitry Bagrash, Alt-Moabit 12a, 10559 Berlin — To the Federal Court of Justice, Karl-Heine-Straße 12, 04229 Leipzig. Berlin, 26.05.2025. Complaint alleging a violation of the right to be heard under § 356a StPO against the order of the presiding judge of the 5th Criminal Senate of 07.05.2025 (case reference 5 StR 72/25, received 21.05.2025).
Note on presentation: the original submission comprises 19 pages in seven sections (I–VII). Owing to its length and substantial overlap in content with the short version already documented under F2-078 (Annex 41_F2), an abridged summary is reproduced below.
Applications
1. Setting aside of the order for violation of the right to be heard. 2. Providing the omitted hearing through a decision on the merits concerning release of appointed defence counsel from duties and access to the case file. 3. A finding of 141 days of inactivity violating fundamental rights in relation to these applications. 4. Consideration of all submissions filed since 17.12.2024.
I. 141 days of judicial inactivity
The complainant applied for access to the case file on 10.12.2024 and for release of his appointed defence counsel, lawyer Römer, from duties on 17.12.2024; both applications remained undecided for 141 days. During that time, he received only letters without a prescribed form from Groß, presiding judge at the Regional Court (VRiLG), but no acknowledgement of receipt under § 37 StPO and no decision on the merits. Only on 21.05.2025 did he receive BGH judicial documents for the first time.
II. Effective absence of a defence
The complaint states that there had been no communication with lawyer Römer since September 2024; the grounds of appeal reached him on 6.12.2024 without prior consultation. The decision of 7.5.2025 relied to a substantial extent on defence counsel’s statement of 7.1.2025, which was never sent to him.
III. Ignored declarations in lieu of oath
According to the complaint, declarations in lieu of oath concerning the defence situation, received by the BGH on 13.03.2025 (receipt 18.03.2025), were not mentioned in the order.
IV. Systematic refusal of access to the case file
The complaint states that, despite repeated applications between December 2024 and April 2025, access to the case file was consistently refused by a blanket reference to § 147 Abs. 4 StPO, without considering the particular situation of effective absence of a defence.
V. Finding on entry on the record contrary to the file
According to the complaint, the finding that he “was not prevented” from making further objections contradicts the documented refusals to take submissions on the record on more than eight occasions between 14.03. and 05.05.2025.
VI. A one-sided statement as the basis for the decision
The complaint states that exclusive reliance on defence counsel’s statement, while excluding all of his own submissions, violates equality of arms (including references to the European Court of Human Rights (EGMR) cases Dombo Beheer/Niederlande and Ruiz-Mateos/Spanien).
VII. Outlook towards a constitutional complaint and the EGMR
According to the summary, the complaint alleging a violation of the right to be heard serves to exhaust legal remedies (§ 90 Abs. 2 BVerfGG; Art. 35 EMRK) and refers to relevant EGMR case law (Hadjianastassiou/Griechenland, Foucher/Frankreich, Eckle/Deutschland).
Berlin, 26.05.2025. Dmitry Bagrash.
Document source
Complaint alleging a violation of the right to be heard of 26.05.2025: Anhörungsrüge_gemäß §356a SrPO_26.05.2025.pdf
The short version of this complaint, entered on the record on 28.05.2025, is documented in full under F2-078 (Annex 41_F2). The declaration in lieu of oath of the same day forms part of the set documented under F2-073.