Constitutional complaint against the order of the 5th Criminal Senate

Dmitry Bagrash, Heidering Prison (JVA Heidering), Ernst-Stargardt-Allee 1, 14979 Großbeeren — To the Federal Constitutional Court, Schlossbezirk 3, 76131 Karlsruhe. Berlin, 16.06.2025. Constitutional complaint under Art. 93 Abs. 1 Nr. 4a GG, §§ 13 Nr. 8a, 90 ff. BVerfGG against the order of the 5th Criminal Senate of the Federal Court of Justice of 07.05.2025 (file reference 5 StR 72/25).

Note on presentation: the original of this constitutional complaint comprises 46 pages with eight sections (A–H) and an extensive list of annexes in several parts. Because of its exceptional length, the following is a faithful but substantially abridged summary of the key arguments; the full text can be viewed via the Drive link.

A. Subject of the complaint

The complaint challenges the order of the 5th Criminal Senate of the BGH of 07.05.2025, which dismissed the appeal on points of law against the judgment of the Berlin Regional Court of 22.07.2024 without substantive examination. It alleges violations of Art. 103 Abs. 1 GG (right to be heard), Art. 19 Abs. 4 GG (effective legal protection), Art. 2 Abs. 1 i.V.m. Art. 20 Abs. 3 GG (rule-of-law principle), Art. 3 Abs. 1 GG (prohibition of arbitrariness) and Art. 6 EMRK (fair proceedings). According to the complaint, the complainant was effectively without a defence throughout the proceedings on the appeal on points of law because his court-appointed defence counsel had been unreachable since September 2024; no decision on counsel’s discharge was made for over 141 days. At the same time, the complaint states that access to the case file was systematically refused and that Moabit Prison (JVA Moabit) repeatedly blocked the recording of his submissions. It further claims that the order rests on findings contrary to the case file and on the unchecked use of a statement by discharged defence counsel.

B. Standing to bring the complaint (extract on the fundamental rights invoked)

1. Art. 103 Abs. 1 GG: According to the complaint, the BGH disposed of eight supplements to the grounds of appeal submitted between 20.01. and 20.05.2025, and the original grounds submitted by court-appointed defence counsel on 28.11.2024, with the bare formula that the letters “had been available and had been the subject of deliberation”, without addressing their substance. Several declarations in lieu of oath concerning procedural obstacles were also said to have been ignored entirely.

2. Art. 19 Abs. 4 GG: According to the complaint, numerous applications material to the decision (including an application for an interim order, an immediate complaint — sofortige Beschwerde — against the Kammergericht’s (Higher Regional Court’s) refusal to accept jurisdiction, an application to discharge defence counsel, an application for access to the case file, several complaints alleging a violation of the right to be heard and complaints under § 198 GVG) remained unprocessed for more than 141 days or were disposed of with the blanket phrase “all further applications are dismissed”.

3. Art. 2 Abs. 1 i.V.m. Art. 20 Abs. 3 GG: According to the complaint, the court neither recognised nor remedied the effective absence of a defence, although it was documented by numerous annexes.

4. Art. 6 Abs. 1, 3 lit. b, c EMRK: According to the complaint, there had been no contact with court-appointed defence counsel since September 2024; the grounds of appeal were submitted without consultation; access to the case file was refused throughout.

5. Art. 3 Abs. 1 GG: While the court used the statement of court-appointed defence counsel of 07.01.2025 that had never been transmitted, the complaint states that all the complainant’s own submissions were ignored — a one-sided assessment of the evidence without an objective basis.

C. Admissibility

According to the complaint, the complainant fully exhausted domestic legal remedies: the complaint alleging a violation of the right to be heard was lodged both in writing by post (received by the BGH on 27.05.2025) and — in parallel and despite repeated refusals by registry officials at Moabit Prison — for the record at the registry. The complaint states that the time limit under § 356a StPO was thereby met and that the subsidiarity requirements were satisfied through eight supplements to the grounds of appeal and numerous applications to safeguard the proceedings.

D. Merits (key points, summarised)

The section sets out in detail, with extensive references to Federal Constitutional Court and European Court of Human Rights case law (including BVerfGE 7, 95; 60, 253; 86, 133; 93, 1; 101, 106; 107, 395; 112, 185; 117, 244; EGMR Imbrioscia/Schweiz, Foucher/Frankreich, Brandstetter/Österreich, Ruiz-Mateos/Spanien, Dombo Beheer/Niederlande), the four alleged fundamental-rights violations: failure to consider substantiated submissions (Art. 103 Abs. 1 GG), blanket failure to decide applications material to the decision (Art. 19 Abs. 4 GG), 141 days of inactivity concerning counsel’s discharge while the complainant was effectively without a defence (Art. 6 EMRK), and arbitrary distortion of the factual picture — in particular, the incorrect assertion that an application to extend or restore a time limit had been made although, according to the complaint, only supplements under § 345 Abs. 2 StPO had actually been sought (Art. 3 Abs. 1 GG).

Additional observations (section H) on the lack of substantive examination of grounds of appeal on substantive law

The complainant argues that the BGH also failed to address the grounds of appeal on substantive law against the judgment of 22.07.2024, including: the absence of an established concrete danger; the absence of signs of an attempt to ignite the device; the absence of an established motive; contradictions between the judgment and the case file; what he regards as an attribution of responsibility not supported by sound evidence; and a passage on coronavirus emergency aid challenged as contrary to the case file. Regarding the alleged USBV electronics (improvised explosive and incendiary device), the complainant states that no expert report (including those of the named BKA (Federal Criminal Police Office) experts) confirmed a functional timer or remote control; nor were traces of an attempt at ignition established. He also refers to a witness statement concerning another person he named and to unassigned DNA traces which, according to his account, were not fully investigated.

F. Requests

1. A finding of violations of Art. 103 Abs. 1 GG, Art. 19 Abs. 4 GG, Art. 2 Abs. 1 i.V.m. Art. 20 Abs. 3 GG and Art. 3 Abs. 1 GG. 2. Setting aside the order and remitting the case to the 5th Criminal Senate. 3. A new decision respecting fundamental rights. 4. In the alternative: an interim stay of enforcement (§ 32 Abs. 1 BVerfGG). 5. Reimbursement of expenses (§ 34a Abs. 2 BVerfGG).

G. List of annexes (overview)

The list of annexes is divided into four parts: part A (key decisions and complaints alleging a violation of the right to be heard, including the three such complaints lodged on 26./27.05. or 28.05.2025 — documented in full under F2-073 and F2-077/F2-078); part B (the eight supplements to the grounds of appeal together with court-appointed defence counsel’s original grounds of 28.11.2024); part C (procedural submissions from December 2024 to April 2025, largely corresponding to annexes 1_F2 to 32_F2 already documented in the case 2 chronology — see there for the full texts, including F2-005, F2-009, F2-012, F2-036, F2-047); part D (ten declarations in lieu of oath sent by post).