Madeleine McCann: German prisoner identified as suspect - #15

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Newthoughts said:
Your English is brilliantly clear. Very good breakdown of a really complicated law?

Thanks for that. I now think I understand the principle behind the appeal. I wonder when they actually charged him with the rape of the 72 year old and whether there would be a get out there.

If I understand correctly the the extradition to the country for the child abuse charges was legally correct BUT then led to a earlier prior parole for drugs being rescinded meaning that full sentence now had to be served?

So he escapes this and is rearrested in Italy and extradited back into the country to serve that extra sentence for drugs on a new extradition request?

But because that sentence was for a crime prior to the original extradition it is deemed illegal for the reasons you've listed?

However in the meantime he has been charged and convicted by Germany, whilst in Germany so no need for extradition, with the rape. But, as I understand it he is claiming this charge and conviction are illegal as his extradition to Germany to serve the drugs charge was illegal. Have I understood that correctly?

So there are several confusing issues.

Firstly he had already been charged and sentenced for the drugs before the first extradition. Was this something like the UK suspended sentence - i.e. say you get two years suspended sentence - it means you only serve that two years IF you commit another crime in that period?

If yes anf the child abuse charge meant he then had to serve this sentence Surely this is not technically a charge outside the extradition but a consequence of commiting the new crime for which he'd been extradited?

Secondly the rape charge, even if made during an illegal sentence, could still be allowed to stand? Hopefully.

If he does win - surely Portugal could then extradite him to be charged and convicted of the rape there

I can see why German LE might be worried. But if it's like the UK you have to go thru every court before you get to the European courts and I believe they rarely go against national courts

This is a really clever ploy and I'd guess expensive. Just how is he affording not just a legal team capable of putting it together but also covering the expense of dragging it thru successive courts. That can't be cheap
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Dear Newthoughts

These are excellent questions - thank you very much.

Some of them I am asking myself and will submit them to a lawyer friend of mine in the next days.

Others I can answer. But please forgive me, not until tomorrow. It is late in Germany and I am too tired for such "heavy food".

But I look forward to doing it tomorrow.
 
haden said:
I doubt they would be interested. IMO they would avoid it at any cost because it might affect their tourism.
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@Newthoughts
"If he does win - surely Portugal could then extradite him to be charged and convicted of the rape there"​

I doubt something quite different: that the case in Portugal is no longer justiciable. They have much shorter limitation periods there than in Germany, and the crime was committed 15 years ago.

I have to ask a friend and I will then report here in the forum.
 
Newthoughts said:
Your English is brilliantly clear. Very good breakdown of a really complicated law?

Thanks for that. I now think I understand the principle behind the appeal. I wonder when they actually charged him with the rape of the 72 year old and whether there would be a get out there.

If I understand correctly the the extradition to the country for the child abuse charges was legally correct BUT then led to a earlier prior parole for drugs being rescinded meaning that full sentence now had to be served?

So he escapes this and is rearrested in Italy and extradited back into the country to serve that extra sentence for drugs on a new extradition request?

But because that sentence was for a crime prior to the original extradition it is deemed illegal for the reasons you've listed?

However in the meantime he has been charged and convicted by Germany, whilst in Germany so no need for extradition, with the rape. But, as I understand it he is claiming this charge and conviction are illegal as his extradition to Germany to serve the drugs charge was illegal. Have I understood that correctly?

So there are several confusing issues.

Firstly he had already been charged and sentenced for the drugs before the first extradition. Was this something like the UK suspended sentence - i.e. say you get two years suspended sentence - it means you only serve that two years IF you commit another crime in that period?

If yes anf the child abuse charge meant he then had to serve this sentence Surely this is not technically a charge outside the extradition but a consequence of commiting the new crime for which he'd been extradited?

Secondly the rape charge, even if made during an illegal sentence, could still be allowed to stand? Hopefully.

If he does win - surely Portugal could then extradite him to be charged and convicted of the rape there

I can see why German LE might be worried. But if it's like the UK you have to go thru every court before you get to the European courts and I believe they rarely go against national courts

This is a really clever ploy and I'd guess expensive. Just how is he affording not just a legal team capable of putting it together but also covering the expense of dragging it thru successive courts. That can't be cheap
Click to expand...

Your answers are on article 27 of COUNCIL FRAMEWORK DECISION of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA).

Of course The Federal Republic of Germany won't illegally judge CB because they can't dishonor an International Agreement under no circumstances even if they have to sacrifice justice. Otherwise they would lose all guarantees on any further extradition. One thing is a concrete case, the other are the abstract principles behind such an agreement. They will simply try the hardest possible to judge him legally.
 
Miss_Paula said:
Will the prime suspect be released from prison soon?

My attempt to explain german law

Next Thursday, the appeal of the suspect Christian B. will be heard before the European Court of Justice. This will decide whether the suspect is likely to be released soon.

I have noticed in the English press that there is often confusion about the current legal situation regarding Christian B.

I would therefore like to briefly explain the situation to you:
(now there is a lot to read, sorry - the context is very complex)

1) Christian B. is currently serving a sentence (1 year 9 months) in prison for drug trafficking (convicted in 2011). Two thirds of this sentence was served in June 2020, so that he can apply for early release under German law. (He did so, then withdrew it and immediately afterwards resubmitted it last week. I can explain details on request).

2) In December 2019, he was convicted to seven years' imprisonment for raping the then 72-year-old American woman in Praia da Luz in 2005 - on the basis of his place of residence and his registration address in 2019, the court in Braunschweig had jurisdiction.

His lawyers appealed against this sentence - for a somewhat complicated reason. In order to explain this, I have to go back:

a) The 2011 drug trafficking court judgment was suspended on parole.
b) In June 2017, Christian B. was arrested in Portugal with a European arrest warrant and extradited to Germany. The reason for this was the execution of a sentence for sexual abuse of a child in Braunschweig. He served the sentence.
c) As a result of this sentence, the parole - i.e. the suspension of imprisonment - from the 2011 drug sentence was cancelled - he was to serve the 21 months accordingly.
d) He escaped this new imprisonment by fleeing to Italy - where he was arrested again in September 2018 and transferred to Germany. This was followed by his re-arrest, for which he has been serving his sentence ever since (1).

During this imprisonment the rape trial and conviction took place last December (2).

Reasons for appeal:

Christian B's lawyers are of the opinion that Germany should not have brought him to court at all, because the original extradition in 2017 from Portugal was exclusively related to the execution of the sentence for child abuse (b).

The basis of this legal position is the so-called European 'Speciality Principle'. According to this, "a person transferred by a Member State on the basis of an European arrest warrant may not be prosecuted or sentenced or subjected to any measure involving deprivation of liberty for an offence other than that for which the accused was made prior”.

In fact, this is a legally serious reason and an extremely difficult matter. In April 2020, the Federal Court of Justice (the highest judicial instance in Germany) responsible for such cases dealt with the appeal. Its Federal Prosecutor General then referred the question for a preliminary ruling to the European Court of Justice based in Luxembourg, the supreme court of the European Union.

And there, on Thursday, 6 August from 9.30 a.m. CEST, it is now to be heard and decided whether Germany was allowed to bring the accused to trial and sentence him at all.

Here in Germany, of course, many people are eagerly awaiting the outcome, especially because it is not clear to a layman (as me) why a German citizen should not be sentenced by a court of law in this country.

As soon as I know the outcome of the trial in Luxembourg, I will report to you here in the forum. And I hope with this paper I have given you a little argumentation help when you discuss it with friends afterwards.

Greetings from the North Sea coast
Paula

(Excuse my poor English)

The decision of the Federal Court, 21. April 2020 (in German)
http://curia.europa.eu/juris/showPd...e&mode=lst&dir=&occ=first&part=1&cid=12079248
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This is great information! Thank you so much for writing this up for us. Greetings from Colorado. And your English is great!!! :)
 
Sharkbite said:
Normally forensic collection is made before sniffer dogs are sent into the crime scene, otherwise the dogs could disturb crucial evidence/or contaminate the scene.

As we know, the crime scene was a mess so who knows what happened. If they followed procedure it would have been after forensic collection.

Before or after, still could be CB's dogs hair sitting in a locker with the PJ, if they still have the samples.
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Don’t disagree, it’s just that you said a reliable source told you the samples were taken before the dogs went in
 
MENDEL said:
After checking some PJ files where dogs are mentioned it seems they only worked outdoors even though they were within apartment 5A.

I think any indoors job would be meaningless as MM had been there for days. No big deal finding her scent inside.
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That would mean that any dog hairs found inside the apartment on 4th May probably weren't from the sniffer dogs, which would make them even more significant. I wonder if that material has been kept.
 
SuperdadV8 said:
Strange thing. Why keeping this in a small cellar. Maybe as an entrance? Would like to know, how deep underground it was. These pipes sometimes got ladders inside, to get entrance to sewers e.g.. He looks pretty skinny, even did that in 2007!
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It may not be from inside the cellar, though. They more or less dug over the whole plot, didn't they?
 
https://www.thelocal.de/20110531/35363


“Judge Michael Seidling stressed the court was not actually convinced of Kachelmann’s innocence, and nor did it necessarily believe that his former girlfriend had made a false accusation. Rather, the grounds for suspicion had in the course of lengthy trial been “diminished but not banished,” he concluded.

The judge sharply criticised defence lawyer Johann Schwenn, whom he said had repeatedly shown a lack of respect and decency before the court...

...Schwenn accused the magazines Focus and Bunte of trying to influence the trial. He later forced Germany’s most famous feminist, Alice Schwarzer, onto the witness stand after she had written for Bild newspaper about her contact with the accuser’s therapist. Schwarzer exercised her right to refuse to testify on matters arising from her work as a journalist.”

Schwenn is defending him alongside Fülscher, if I have it correct?
So, this is basically just a little insight into what we can expect should this case get to court.
 
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