Federal Court of Justice (BGH) order on complaints alleging a violation of the right to be heard

Officially issued copy. Federal Court of Justice. Order of 19 June 2025. In the criminal case against Dmitry Bagrash of Berlin, born on 9 May 1968 in Moscow (Russian Federation), concerning attempted murder and other offences. Here: complaints alleging a violation of the right to be heard. File reference 5 StR 72/25.

On 19 June 2025, the 5th Criminal Senate of the Federal Court of Justice — acting through its presiding judge in respect of point 2 — ordered:

1. The convicted person’s complaint alleging a violation of the right to be heard concerning the Senate’s order of 7 May 2025 is dismissed at his expense. His application to defer enforcement of the judgment of the Berlin Regional Court I of 22 July 2024 thereby becomes moot.

2. The convicted person’s complaint alleging a violation of the right to be heard concerning the presiding judge’s order of 7 May 2025, and his associated application for reinstatement following failure to meet the application time limit under § 356a Satz 2 StPO, are dismissed at his expense.

Reasons

1. By order of 7 May 2025, the Senate dismissed the convicted person’s appeal on points of law (Revision) against the judgment of the Berlin Regional Court I of 22 July 2024 as unfounded under § 349 Abs. 2 StPO and dismissed further applications. By the presiding judge’s order of the same day, his applications to revoke the appointment of his court-appointed defence counsel and to grant access to the case file were refused. The convicted person challenges the orders by his complaints alleging a violation of the right to be heard of 22 May 2025, on which he made further submissions by letter of 26 May 2025 — described as further such complaints — and alternatively requested reinstatement in the previous position (Wiedereinsetzung in den vorigen Stand). On 28 May 2025, he also requested that enforcement be deferred until the complaint alleging a violation of the right to be heard was decided.

2. The admissible complaint under § 356a StPO concerning the Senate’s order is unfounded. The decision on the appeal on points of law does not rest on a violation of the convicted person’s right to be heard (Art. 103 Abs. 1 GG). The Senate neither used procedural material on which the convicted person had not been heard, nor overlooked submissions by him that had to be considered, nor otherwise violated his right to be heard. As the express statement in the challenged decision shows, on 7 May 2025 the Senate had all the convicted person’s letters received by that date — in particular, especially his “supplements to the grounds of appeal” up to and including part 7 — and they were the subject of deliberation. The supplement to the grounds of appeal, part 8, of 15 May 2025 therefore could not be considered in the decision. Insofar as the convicted person complains of the absence of a Senate decision on his applications for an interim order, for a judicial finding of inactivity and on his immediate complaint (sofortige Beschwerde), these too were the subject of deliberation and were decided, as is apparent from the operative formula in point 3 of the challenged order.

3. With the dismissal of the complaint alleging a violation of the right to be heard, the convicted person’s application to defer enforcement under § 356a Satz 5 i.V.m. § 47 Abs. 2 StPO, described as an application for a “stay of enforcement”, becomes moot (see BGH, order of 17 February 2023 – AnwSt (R) 4/22 Rn. 5 mwN).

4. The convicted person’s complaint alleging a violation of the right to be heard concerning the presiding judge’s order of 7 May 2025 is unsuccessful. a) It may remain undecided whether such a complaint — under either § 356a or § 33a StPO — is procedurally available or is inadmissible for other reasons. In any event, the complaint is unfounded. b) The convicted person’s right to be heard was not violated. His submissions on the application to discharge defence counsel were fully noted and taken into account in reaching the decision (see BVerfG NJW 2003, 1924).

Insofar as the convicted person objects in particular that the challenged decision rests on his court-appointed defence counsel’s statement — already placed on file while the matter was pending before the Senate — which the court had not brought to his attention, this did not violate his right to be heard in a manner material to the decision.

aa) No violation of the right to be heard is apparent in the first place. There was no need for the court to transmit information concerning the defence relationship between court-appointed defence counsel and client. At the time of the challenged decision, it had to be assumed that the convicted person’s duly appointed defence counsel had made the statement accessible to him or informed him of its substance (see BGH, order of 26 June 2024 – 3 StR 300/23 Rn. 4 mwN). The convicted person neither submitted that transmission by the court would exceptionally have been necessary to safeguard his right to be heard, nor was this otherwise apparent. According to the direction of the presiding judge of the criminal chamber previously dealing with the case, of 16 January 2025, the convicted person had been informed that his court-appointed defence counsel had submitted a statement on his application to discharge counsel; nevertheless, his further submissions did not assert that the statement or its substance had been withheld from him. His blanket assertion that there had been no communication whatsoever between him and his defence counsel since September 2024 evidently did not concern counsel’s transmission of submissions to him, because in the application to discharge counsel the convicted person himself had stated that he received the copy of the grounds of appeal from counsel on 6 December 2024.

bb) Moreover, the convicted person’s possible lack of knowledge of his court-appointed defence counsel’s statement did not have an effect material to the decision. It is excluded that hearing the convicted person on the statement would have resulted in a different decision (see KK-StPO/Gericke, 9. Aufl., § 356a Rn. 5 mwN). The challenged decision relies on the statement only insofar as it explains that the preparation and submission of the grounds of appeal had been agreed with the defendant and that no indications of a breach of duty by defence counsel are apparent. This already follows from the convicted person’s letter of 11 December 2024, in which he expressly declared his agreement with counsel’s statement of grounds. The supposed need to supplement the grounds of appeal asserted by the convicted person at the same time provides no indication of a breach of duty by counsel, in view of the requirements of § 345 Abs. 2 StPO set out in the challenged order.

5. The decisions on costs follow from application by analogy of § 465 Abs. 1 StPO.

Cirener, Köhler, Gericke, Mosbacher, von Häfen. Lower court: Berlin Regional Court I, 22.07.2024 – (522 Ks) 176 Js 4/22 (5/23). Officially issued by: Pahl, senior judicial secretary acting as registry certification official.