Madeleine McCann: German Prisoner Identified as Suspect, #38

[RichardKimble]

This was the original decision, kindly posted by @Hygge

Legal proceedings
Landgericht Braunschweig declines jurisdiction in proceedings 2 KLs 213 Js 52790/18 (15/22) (rape, sexual abuse)

BRAUNSCHWEIG REGIONAL COURT DECLINES JURISDICTION IN THE PROCEEDINGS 2 KLS 213 JS 52790/18 (15/22) (RAPE, SEXUAL ABUSE)


In the course of the interlocutory proceedings in the above-mentioned proceedings, the Regional Court of Braunschweig examined, inter alia, the local jurisdiction pursuant to section 16 of the Code of Criminal Procedure (StPO) and, by order of 19.04.2023, declared itself without jurisdiction with regard to the indictment of the Public Prosecutor's Office of Braunschweig dated 05.10.2022 (see also press release of 12.10.2022).

In detail:

The 2nd Criminal Chamber stated that the jurisdiction of the Regional Court of Braunschweig was solely due to the place of jurisdiction of the last domicile pursuant to § 8 para. 2 2nd Alt. StPO came into consideration. The place of jurisdiction of the last domicile was exclusively determined for the case that the accused no longer had a current domestic domicile and the habitual residence was unknown or abroad. The defendant currently no longer has a domestic residence, as he is housed in a correctional institution and his last habitual residence was abroad.

It is true that the accused was originally resident and also registered in the local district. However, in the opinion of the chamber, this is not relevant, since the accused - as he himself also stated - established a new and thus last residence in Saxony-Anhalt. This was also supported by the fact that he was registered in the land register as the owner of a property there. In addition to various vehicles, the accused's personal belongings were also on this property. Two months later, he fled abroad. He kept the property.

After a comprehensive assessment of all the arguments presented, the Chamber assumed that the accused had last resided outside of the local district and therefore declared itself incompetent.

The accused is currently in criminal custody in another matter. The Regional Court cancelled the additional arrest warrant of 18.11.2022 (see also press release of 28.11.2022). Against this background, the question of urgent suspicion did not have to be re-examined. The revocation has no influence on the further serving of the current sentence.

The order can be challenged by simple appeal pursuant to section 304 of the Code of Criminal Procedure. The appeal would then have to be decided by the Higher Regional Court of Braunschweig.

Background:

§ 8 Place of jurisdiction of the domicile or place of residence.

(1) Jurisdiction is also established at the court in whose district the accused has his domicile at the time the action is brought.

(2) If the defendant does not have a place of residence within the area of application of this Federal Act, the place of jurisdiction shall also be determined by the habitual place of residence and, if such a place is not known, by the last place of residence.
landgericht-braunschweig.de

 

[mrjitty]

If the prosecutors have got the residency wrong, which one would think to be a simple matter , what else have they?

I think it's not so much they got it wrong than the court preferred the defence argument (subject to appeal). Clearly they had good arguments in their favour.

It's worth mentioning that trying to get your opponents case struck out, dismissed or crippled in some way before trial is absolutely the first thing everyone tries to do in litigation.

 

[mrjitty]

We may not like the delay and even if FF is using it for gaining time, if CBs last residence was in Neuwegersleben, Braunschweig is not responsible and we have to accept that. if FF is right CB maybe was prosecuted on a wrong court in the DM case.

right.

This was the original decision, kindly posted by @Hygge

Legal proceedings
Landgericht Braunschweig declines jurisdiction in proceedings 2 KLs 213 Js 52790/18 (15/22) (rape, sexual abuse)

BRAUNSCHWEIG REGIONAL COURT DECLINES JURISDICTION IN THE PROCEEDINGS 2 KLS 213 JS 52790/18 (15/22) (RAPE, SEXUAL ABUSE)


In the course of the interlocutory proceedings in the above-mentioned proceedings, the Regional Court of Braunschweig examined, inter alia, the local jurisdiction pursuant to section 16 of the Code of Criminal Procedure (StPO) and, by order of 19.04.2023, declared itself without jurisdiction with regard to the indictment of the Public Prosecutor's Office of Braunschweig dated 05.10.2022 (see also press release of 12.10.2022).

In detail:

The 2nd Criminal Chamber stated that the jurisdiction of the Regional Court of Braunschweig was solely due to the place of jurisdiction of the last domicile pursuant to § 8 para. 2 2nd Alt. StPO came into consideration. The place of jurisdiction of the last domicile was exclusively determined for the case that the accused no longer had a current domestic domicile and the habitual residence was unknown or abroad. The defendant currently no longer has a domestic residence, as he is housed in a correctional institution and his last habitual residence was abroad.

It is true that the accused was originally resident and also registered in the local district. However, in the opinion of the chamber, this is not relevant, since the accused - as he himself also stated - established a new and thus last residence in Saxony-Anhalt. This was also supported by the fact that he was registered in the land register as the owner of a property there. In addition to various vehicles, the accused's personal belongings were also on this property. Two months later, he fled abroad. He kept the property.

After a comprehensive assessment of all the arguments presented, the Chamber assumed that the accused had last resided outside of the local district and therefore declared itself incompetent.

The accused is currently in criminal custody in another matter. The Regional Court cancelled the additional arrest warrant of 18.11.2022 (see also press release of 28.11.2022). Against this background, the question of urgent suspicion did not have to be re-examined. The revocation has no influence on the further serving of the current sentence.

The order can be challenged by simple appeal pursuant to section 304 of the Code of Criminal Procedure. The appeal would then have to be decided by the Higher Regional Court of Braunschweig.

Background:

§ 8 Place of jurisdiction of the domicile or place of residence.

(1) Jurisdiction is also established at the court in whose district the accused has his domicile at the time the action is brought.

(2) If the defendant does not have a place of residence within the area of application of this Federal Act, the place of jurisdiction shall also be determined by the habitual place of residence and, if such a place is not known, by the last place of residence.
landgericht-braunschweig.de

Right - so he was officially registered in Braunschweig and resident.

Then he left, but never de-registered (which he was required to do)

Then he came back and brought a property and lived at least sometimes at that address in a different state

So the Court found that superseded the Braunschweig 'wohnsitz' registration, as his last habitual address.

An important point to note is he probably couldn't officially register at the box factory as it isn't a residence.

In any event the Court's decision is understandable.

 

[Mex]

right.


Right - so he was officially registered in Braunschweig and resident.

Then he left, but never de-registered (which he was required to do)

Then he came back and brought a property and lived at least sometimes at that address in a different state

So the Court found that superseded the Braunschweig 'wohnsitz' registration, as his last habitual address.

An important point to note is he probably couldn't officially register at the box factory as it isn't a residence.

In any event the Court's decision is understandable.

Possibly it isn't for me to say - but I find the court's decision inexplicable.

I will be amazed if it isn't appealed - if it hasn't been already.

 

[frank-cole]

I understand what you are saying but at the end of the day FF doesn't have a crystal ball ensuring he will get a softer team of prosecutors through a change of venue.
What he would be assured of is the continuity of the BKA and the evidence which will follow whatever the venue decided is, some of which we know to be very powerful indeed.
My opinion

Agree. Never in a million years is another prosecutorial team going to come in & save the day for CB & then drop every other case he’s been investigated for.
I don’t quite understand what could motivate anybody to approvingly speculate that that could happen. Sometimes it reads like wishful thinking. JMO

 

[frank-cole]

This was the original decision, kindly posted by @Hygge

Legal proceedings
Landgericht Braunschweig declines jurisdiction in proceedings 2 KLs 213 Js 52790/18 (15/22) (rape, sexual abuse)

BRAUNSCHWEIG REGIONAL COURT DECLINES JURISDICTION IN THE PROCEEDINGS 2 KLS 213 JS 52790/18 (15/22) (RAPE, SEXUAL ABUSE)


In the course of the interlocutory proceedings in the above-mentioned proceedings, the Regional Court of Braunschweig examined, inter alia, the local jurisdiction pursuant to section 16 of the Code of Criminal Procedure (StPO) and, by order of 19.04.2023, declared itself without jurisdiction with regard to the indictment of the Public Prosecutor's Office of Braunschweig dated 05.10.2022 (see also press release of 12.10.2022).

In detail:

The 2nd Criminal Chamber stated that the jurisdiction of the Regional Court of Braunschweig was solely due to the place of jurisdiction of the last domicile pursuant to § 8 para. 2 2nd Alt. StPO came into consideration. The place of jurisdiction of the last domicile was exclusively determined for the case that the accused no longer had a current domestic domicile and the habitual residence was unknown or abroad. The defendant currently no longer has a domestic residence, as he is housed in a correctional institution and his last habitual residence was abroad.

It is true that the accused was originally resident and also registered in the local district. However, in the opinion of the chamber, this is not relevant, since the accused - as he himself also stated - established a new and thus last residence in Saxony-Anhalt. This was also supported by the fact that he was registered in the land register as the owner of a property there. In addition to various vehicles, the accused's personal belongings were also on this property. Two months later, he fled abroad. He kept the property.

After a comprehensive assessment of all the arguments presented, the Chamber assumed that the accused had last resided outside of the local district and therefore declared itself incompetent.

The accused is currently in criminal custody in another matter. The Regional Court cancelled the additional arrest warrant of 18.11.2022 (see also press release of 28.11.2022). Against this background, the question of urgent suspicion did not have to be re-examined. The revocation has no influence on the further serving of the current sentence.

The order can be challenged by simple appeal pursuant to section 304 of the Code of Criminal Procedure. The appeal would then have to be decided by the Higher Regional Court of Braunschweig.

Background:

§ 8 Place of jurisdiction of the domicile or place of residence.

(1) Jurisdiction is also established at the court in whose district the accused has his domicile at the time the action is brought.

(2) If the defendant does not have a place of residence within the area of application of this Federal Act, the place of jurisdiction shall also be determined by the habitual place of residence and, if such a place is not known, by the last place of residence.
landgericht-braunschweig.de

It’s unfortunate because that very 2nd chamber affirmed the strong suspicions that CB is responsible for all 5 offences. One wonders whether their position was a factor in FF’s decision to play the jurisdictional card soon after.

 

[mrjitty]

It’s unfortunate because that very 2nd chamber affirmed the strong suspicions that CB is responsible for all 5 offences. One wonders whether their position was a factor in FF’s decision to play the jurisdictional card soon after.

That just means the court said the case could go to trial based on the papers.

If they considered it too weak or lacking in a critical area they could throw it out.

 

[frank-cole]

That just means the court said the case could go to trial based on the papers.

If they considered it too weak or lacking in a critical area they could throw it out.

IMO there’s zero chance these cases are going to cease. I think they’ll all go to trial & I fully agree that’s the right thing.

Regarding the courts & affirmed strong suspicion - IMO what it means is exactly the same as what is written.

“The 2nd Criminal Chamber has affirmed a strong suspicion for the five accused offences and considered the reasons for the imprisonment of the risk of flight and the risk of repetition to be given”

 

[Mex]

That just means the court said the case could go to trial based on the papers.

If they considered it too weak or lacking in a critical area they could throw it out.

Once the charges are sorted out and agreed, that is it. Any dismissal would happen at that stage. The case or in this instance concerning CB cases, proceed on the next step which is the trial.

It won't be thrown out. The trial process will consider the evidence and will form a judgement on that basis.
My opinion

 

[Mex]

IMO there’s zero chance these cases are going to cease. I think they’ll all go to trial & I fully agree that’s the right thing.

Regarding the courts & affirmed strong suspicion - IMO what it means is exactly the same as what is written.

“The 2nd Criminal Chamber has affirmed a strong suspicion for the five accused offences and considered the reasons for the imprisonment of the risk of flight and the risk of repetition to be given”

I am not of the opinion that just because CB possesses a criminal record which spans decades he is automatically guilty of whatever it comes into into the notion of the authorities to accuse him of.
The evidence does that job for them and by the law of averages CB must have escaped prosecution for his crimes more often than he was caught out. At the moment CB is innocent of the indicted crimes but I have absolutely no doubt that the five charges for which he awaits trial are fully supported by evidence. As is his status of prime suspect for crimes against MM.

To call the due process and those delivering it into disrepute is choosing the wrong person's case(s) to champion.
My opinion

Snip
C B. is no stranger to the security authorities, crimes pave his curriculum vitae. Most recently, the 45-year-old was sentenced to a seven-year prison sentence at the end of 2019, and the Federal Court of Justice confirmed the verdict just under a year later. The Braunschweig Regional Court had proven the rape of a 72-year-old American woman in 2005, also in Portugal. A hair at the crime scene provided the DNA evidence.

According to the BKA, B. had previously been in prison several times, including for "s****l a***e" of children. But he is also known to the courts and the police for theft, bodily injury and drug offenses, according to consistent media reports. According to "Spiegel", there are at least 17 entries in the Federal Central Register, for the first sexualized abuse of a child, CB. was convicted in 1997 as a 17-year-old.

Er ist Hauptverdächtiger im "Fall" Maddie: die Akte des Christian B.

Die Staatsanwaltschaft Braunschweigt klagt den Hauptverdächtigen im Fall Madeleine "Maddie" McCann an – wegen fünf anderer Verbrechen. Die Akte Christian B. wird dicker.

www.stern.de

 

[Okapi]

I am not of the opinion that just because CB possesses a criminal record which spans decades he is automatically guilty of whatever it comes into into the notion of the authorities to accuse him of.
The evidence does that job for them and by the law of averages CB must have escaped prosecution for his crimes more often than he was caught out. At the moment CB is innocent of the indicted crimes but I have absolutely no doubt that the five charges for which he awaits trial are fully supported by evidence. As is his status of prime suspect for crimes against MM.

To call the due process and those delivering it into disrepute is choosing the wrong person's case(s) to champion.
My opinion

Snip
C B. is no stranger to the security authorities, crimes pave his curriculum vitae. Most recently, the 45-year-old was sentenced to a seven-year prison sentence at the end of 2019, and the Federal Court of Justice confirmed the verdict just under a year later. The Braunschweig Regional Court had proven the rape of a 72-year-old American woman in 2005, also in Portugal. A hair at the crime scene provided the DNA evidence.

According to the BKA, B. had previously been in prison several times, including for "s****l *advertiser censored***e" of children. But he is also known to the courts and the police for theft, bodily injury and drug offenses, according to consistent media reports. According to "Spiegel", there are at least 17 entries in the Federal Central Register, for the first sexualized abuse of a child, CB. was convicted in 1997 as a 17-year-old.

Er ist Hauptverdächtiger im "Fall" Maddie: die Akte des Christian B.

Die Staatsanwaltschaft Braunschweigt klagt den Hauptverdächtigen im Fall Madeleine "Maddie" McCann an – wegen fünf anderer Verbrechen. Die Akte Christian B. wird dicker.

www.stern.de

He has almost certainly avoided criminal charges for domestic violence. Although the ‘bodily injury’ is probably related to his one conviction for battering a girlfriend, there are many exes who have gone on public record to describe behaviour that absolutely correlates with domestic violence and coercive control. Just my take.

 

[frank-cole]

I am not of the opinion that just because CB possesses a criminal record which spans decades he is automatically guilty of whatever it comes into into the notion of the authorities to accuse him of.
The evidence does that job for them and by the law of averages CB must have escaped prosecution for his crimes more often than he was caught out. At the moment CB is innocent of the indicted crimes but I have absolutely no doubt that the five charges for which he awaits trial are fully supported by evidence. As is his status of prime suspect for crimes against MM.

To call the due process and those delivering it into disrepute is choosing the wrong person's case(s) to champion.
My opinion

Snip
C B. is no stranger to the security authorities, crimes pave his curriculum vitae. Most recently, the 45-year-old was sentenced to a seven-year prison sentence at the end of 2019, and the Federal Court of Justice confirmed the verdict just under a year later. The Braunschweig Regional Court had proven the rape of a 72-year-old American woman in 2005, also in Portugal. A hair at the crime scene provided the DNA evidence.

According to the BKA, B. had previously been in prison several times, including for "s****l *advertiser censored***e" of children. But he is also known to the courts and the police for theft, bodily injury and drug offenses, according to consistent media reports. According to "Spiegel", there are at least 17 entries in the Federal Central Register, for the first sexualized abuse of a child, CB. was convicted in 1997 as a 17-year-old.

Er ist Hauptverdächtiger im "Fall" Maddie: die Akte des Christian B.

Die Staatsanwaltschaft Braunschweigt klagt den Hauptverdächtigen im Fall Madeleine "Maddie" McCann an – wegen fünf anderer Verbrechen. Die Akte Christian B. wird dicker.

www.stern.de

I completely agree. My point was that some tend to want to believe that the cases being passed to another prosecutor will result in positive news for CB!
Like you, I’m of the strong opinion that all of these charges are based on evidence & that evidence won’t change regardless of whether jurisdiction is changed, that’s why I think the outcome will be the same regardless of where he’s prosecuted. IMO he’ll be convicted for all 6 of the crimes he’s been investigated for.

Legally innocent & factually innocent springs to mind.

 

[Mex]

He has almost certainly avoided criminal charges for domestic violence. Although the ‘bodily injury’ is probably related to his one conviction for battering a girlfriend, there are many exes who have gone on public record to describe behaviour that absolutely correlates with domestic violence and coercive control. Just my take.

The most severe offence against a child for which he was convicted does appear to have been revealed as only as a result of CB being investigated for domestic violence (against another girlfriend not the child's mother).

Snip
CB assaulted the youngster in a public park before taking graphic photographs that were later discovered on his digital camera and laptop as police investigated him over a separate claim of domestic violence.
__________________________________________

While in Braunschweig, CB ran a kiosk selling drinks and snacks. He was accused of assaulting the woman he lived with, NM, who was not the mother of his victim.
During a raid on his flat, police seized a laptop and other devices on which they found the photographs.
Analysis of the images allowed the officers to identify the scene of the attack and the girl, who had moved to another part of Germany with her mother.
By then, however, CB had fled to the Algarve in Portugal, where he had been living intermittently since the mid-1990s.

German authorities issued an EU-wide arrest warrant, but it was four years before officers in Portugal seized him after responding to reports that he had exposed himself to children at a park about 40 miles from Praia da Luz.

Christian Brueckner was jailed for abusing ex-girlfriend's daughter

The prime suspect in the disappearance of Madeleine McCann was jailed for sexually abusing the five-year-old daughter of a former girlfriend, The Mail on Sunday can reveal.

www.dailymail.co.uk

 

[enquirer6]

Once the charges are sorted out and agreed, that is it. Any dismissal would happen at that stage. The case or in this instance concerning CB cases, proceed on the next step which is the trial.

It won't be thrown out. The trial process will consider the evidence and will form a judgement on that basis.
My opinion

Can't see how your opinion would be wrong Mex.

Charges can't just be dropped because a person suspected of committing the crimes was living at the 'wrong' place at the time the crimes, were committed, surely?

That would be the height of absurdity.

 

[mrjitty]

Here is roughly how the german pre-trial process works.

The prosecutor has conducted the preliminary investigation and elected to indict (charge) CB in the Court.

In the preliminary proceedings, the Court decides whether to discontinue the case, or open the main proceedings (the trial). In determining whether to set the matter for trial, the Court must be satisfied that there is sufficient suspicion that the defendant is guilty of the offence.

In the present case. the Court said:

“The 2nd Criminal Chamber has affirmed a strong suspicion for the five accused offences"

Basically what this means is they decided the case was strong enough to go to trial.

It's broadly similar to a preliminary hearing where a court determines if there is a case to answer based on a fast track review of the evidence.

The reason to have this step is to avoid having trials where the Court believes there is little chance the defendant will be found guilty - which is a waste of resources.

 

[mrjitty]

IMO there’s zero chance these cases are going to cease. I think they’ll all go to trial & I fully agree that’s the right thing.

Regarding the courts & affirmed strong suspicion - IMO what it means is exactly the same as what is written.

“The 2nd Criminal Chamber has affirmed a strong suspicion for the five accused offences and considered the reasons for the imprisonment of the risk of flight and the risk of repetition to be given”

Bolded - That is the standard under s203 StPO

Section 203
Decision to open main proceedings
The court decides to open main proceedings if, in the light of the results of the preparatory proceedings, there appear to be sufficient grounds to suspect that the indicted accused has committed an offence.

In order to indict, the standard under s 170 must be met

For the public prosecutor’s office to bring an indictment under Section 170 (1) StPO, there must be sufficient suspicion of an offence against the accused. This is given if there is an overwhelming probability that the accused will be convicted after a preliminary assessment of the evidence situation.

So in summary, the prosecutor will not indict, and the trial will not be held without a likelihood of conviction - which is broadly similar to the UK

 

[mrjitty]

Can't see how your opinion would be wrong Mex.

Charges can't just be dropped because a person suspected of committing the crimes was living at the 'wrong' place at the time the crimes, were committed, surely?

That would be the height of absurdity.

The charges have in fact been dismissed because they were filed in the wrong jurisdiction.

We don't know if an appeal of that decision is in progress, or if/when the prosecutor in Magdeburg might refile the case.

 

[mrjitty]

Quite, so how have CBs legal team determined and convinced the court that this is his place of residency, how have not HCWs team convinced the court in their favour?

My guess:

When CB returned to Germany he wasn't living where he had been registered. He didn't register anywhere else (usually you can't register at a summer house etc)

As a factual question, he had no legal or 'normal' permanent residency, so the Court was left to determine which his main base. The property he owned, where could camp in his van, may have been where he mostly was.

Also burden of proof likely plays a role. In other words, it was likely difficult for the prosecutor to prove a Braunschweig address was more suitable, when CB had brought property elsewhere.

 

[RichardKimble]

My guess:

When CB returned to Germany he wasn't living where he had been registered. He didn't register anywhere else (usually you can't register at a summer house etc)

As a factual question, he had no legal or 'normal' permanent residency, so the Court was left to determine which his main base. The property he owned, where could camp in his van, may have been where he mostly was.

Also burden of proof likely plays a role. In other words, it was likely difficult for the prosecutor to prove a Braunschweig address was more suitable, when CB had brought property elsewhere.

OK so we've kinda established the reasonings, so the whys now , why is it important for the defence to have it moved , and if the Braunschweig appeal for what reason kudos ? one would hope the German system doesn't operates that way.

Some argue its a delaying tactic, with CB incarcerated until 2026, let's say at least one guilty verdict of the charges would bring with it at least another 7 years so whether a trial is delayed until next year it makes no odds, CB will still remain in jail it wouldn't bring a chance of freedom any closer, that only works if the charges are completely dropped.

IMO and I'll admit to I'm probably being totally wrong , there is something else at play here, it makes no odds where the hearing is held the weight of the evidence will convict or not, a place of domicile won't and shouldn't alter that.

 

[Mex]

OK so we've kinda established the reasonings, so the whys now , why is it important for the defence to have it moved , and if the Braunschweig appeal for what reason kudos ? one would hope the German system doesn't operates that way.

Some argue its a delaying tactic, with CB incarcerated until 2026, let's say at least one guilty verdict of the charges would bring with it at least another 7 years so whether a trial is delayed until next year it makes no odds, CB will still remain in jail it wouldn't bring a chance of freedom any closer, that only works if the charges are completely dropped.

IMO and I'll admit to I'm probably being totally wrong , there is something else at play here, it makes no odds where the hearing is held the weight of the evidence will convict or not, a place of domicile won't and shouldn't alter that.

For me it does matter in which court the cases are heard. All the work has been carried out by prosecutors in Braunschweig, not to pass on to another jurisdiction but to progress it through the trial stage and beyond.

Two thoughts from me
Firstly FF's move for a change of court was from a defence which had seriously run out of options and played the jurisdiction card as a last resort delaying tactic.
Bearing in mind that the defence are in possession of all the case files and are very well aware of what they are up against.
I'm betting that no one was as surprised as FF when the judge went along with it.

Secondly - I too have pondered as you have, that there might be an ulterior motive surrounding the delay in resolving the venue for the trial. But without embarking into conspiracy theory country few of the notions I've come up with are tenable.