Constitutional complaint against the presiding judge’s order

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 against the order of the presiding judge 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 34 pages in eleven sections (I–XI). Because of its exceptional length and partial overlap in substance with the parallel complaint from the same day (see F1-044) the following is an abridged but faithful summary; the full text can be viewed via the Drive link.

III. Subject of the complaint

The subject is the order of the presiding judge of the 5th Criminal Senate of 07.05.2025, by which the applications to discharge court-appointed defence counsel, lawyer Römer (RA), for personal access to the case file and for further measures to safeguard the proceedings were dismissed or left unaddressed. Violations of Art. 103 Abs. 1 GG, Art. 2 Abs. 1 i.V.m. Art. 20 Abs. 3 GG, Art. 19 Abs. 4 GG, Art. 3 Abs. 1 GG and Art. 6 Abs. 1, 3 lit. b, c EMRK are alleged.

IV. Analysis of the BGH’s reasons concerning the discharge of defence counsel

The complainant challenges in particular: a misunderstanding of the standard under § 143a Abs. 2 Satz 1 Nr. 3 StPO (the breakdown of the relationship of trust should, in his view, be assessed from the perspective of a reasonable suspect, rather than through excessive requirements for substantiation by an unrepresented detainee); failure to address repeatedly documented breaches of duty by defence counsel (including the late transmission of the grounds of appeal only on 06.12.2024 and the lack of contact since September 2024); the uncritical use of lawyer Römer’s (RA) undisclosed statement of 07.01.2025; a misinterpretation of § 345 Abs. 2 StPO; failure to recognise documented procedural obstacles (refusals to take submissions on the record); and a formal refusal under § 143a Abs. 3 StPO challenged as legally erroneous because no proper information on legal remedies had been provided.

V. Additional analysis of access to the case file

The complainant challenges the blanket application of § 147 Abs. 4 StPO without examining the effective absence of a defence, the complete failure to exercise discretion under § 147 Abs. 7 StPO, and the finding contrary to the facts that he “had not been prevented” from raising further objections — although several declarations in lieu of oath demonstrated the opposite. He also considers this a violation of Art. 6 Abs. 3 lit. b EMRK (Foucher/Frankreich, Garcia Alva/Deutschland).

VI. Admissibility

According to the complaint, the complaint alleging a violation of the right to be heard was lodged on 26.05.2025 both by post (received by the BGH on 27.05.2025) and for the record at Moabit Prison; the latter was initially refused, but on 28.05.2025 an abbreviated version was successfully entered on the record. The complainant also refers to a chain of earlier submissions from 13.02.2025 as evidence of continuing efforts to obtain legal protection.

VII. Individual fundamental-rights violations (summarised)

The reasoning essentially follows the arguments in F1-044: use of defence counsel’s statement without communicating it to the complainant (Art. 103 Abs. 1 GG); 141 days of inactivity on key applications (Art. 19 Abs. 4 GG); effective absence of a defence over months (Art. 6 EMRK); one-sided assessment of the evidence in defence counsel’s favour (Art. 3 Abs. 1 GG); structural disregard of minimum rule-of-law standards (Art. 2 Abs. 1 i.V.m. Art. 20 Abs. 3 GG).

IX. Announced application to the European Court of Human Rights (EGMR)

The complainant expressly announces that he will lodge an individual application with the European Court of Human Rights (EGMR), based on Art. 6 Abs. 1 and Abs. 3 lit. b, c EMRK, and refers to the exhaustion of domestic legal remedies within the meaning of Art. 35 Abs. 1 EMRK.

X. Requests

1. Setting aside the challenged order of the presiding judge of 07.05.2025. 2. A finding of the fundamental-rights violations specified. 3. Remittal to the Federal Court of Justice for a new decision with the right to be heard, access to the case file and an actual defence ensured. 4. Directions from the Federal Constitutional Court to Moabit Prison to ensure that submissions are taken on the record, that mail can be accessed and that new defence counsel can be contacted.

XI. List of annexes

The list of annexes is largely identical in substance to that of the parallel constitutional complaint from the same day (see F1-044 for the overview); it comprises the same four parts (A–D), with complaints alleging a violation of the right to be heard, supplements to the grounds of appeal, procedural submissions and declarations in lieu of oath, whose full texts are mostly already documented in the case 2 chronology.

Yours sincerely, Dmitry Bagrash