Madeleine McCann: German Prisoner Identified as Suspect, #38

[mrjitty]

I have been wondering if an accusation without charge has happened in other cases in Germany, but can’t seem to find anything. The Lamplugh one is a good example in the UK.

According to ECHR such statements by public officials breach presumption of innocence. (Article 6)

It seems statements of mere suspicion are OK.

The Court differentiates between statements merely voicing suspicion of a suspect’s guilt, and statements clearly indicating his or her guilt. The latter infringes Article 6 § 2, whereas the former has been regarded as unobjectionable in various situations examined by the Court

https://ks.echr.coe.int/documents/d/echr-ks/presumption-of-innocence

ETA

It looks like there are a number of relevant cases on this question. I will try to find some time to read them.

It seems at first glance, the prosecutor should not make an unqualified declaration of guilt. For example

The prosecutor’s words printed in the North Star were far from discreet or circumspect. He identified the applicant by his first initial and full second name and labelled him the “murderer” of one victim and “complicit in the murder” of the other victim. This is more than, as the Government say, mere facts found by the investigation, this is an unqualified declaration of guilt.

The prosecutor’s outspoken comments were clearly a declaration of the applicant’s guilt which, firstly, encouraged the public to believe him guilty and, secondly, prejudged the assessment of the facts by the competent judicial authority.

HUDOC - European Court of Human Rights

The HUDOC database provides access to the case-law of the Court (Grand Chamber, Chamber and Committee judgments and decisions, communicated cases, advisory opinions and legal summaries from the Case-Law Information Note), the European Commission of Human Rights (decisions and reports) and the...

hudoc.echr.coe.int

ETA2
Is an interesting question how this HCW statement jibes with Article 6

Mr Wolters said: "If you knew the evidence we had you would come to the same conclusion as I do but I can't give you details because we don't want the accused to know what we have on him - these are tactical considerations."

Madeleine McCann: Public 'would reach same conclusion' on suspect

Prosecutor says if public "knew the evidence we had" they would think Madeleine McCann was killed.

www.bbc.com

 

[Consider Dudley]

If we can't say that after three years how many extra years do we need to wait until we're allowed to?

You're allowed to say whatever you want, whenever you want, but personally I have chosen to reserve judgement until such a time as the full facts are known. I don't think that's unreasonable, and you wouldn't expect a judge to decide a question of guilt with only some of the evidence presented would you?

 

[Consider Dudley]

According to ECHR such statements by public officials breach presumption of innocence. (Article 6)

It seems statements of mere suspicion are OK.

https://ks.echr.coe.int/documents/d/echr-ks/presumption-of-innocence

ETA

It looks like there are a number of relevant cases on this question. I will try to find some time to read them.

It seems at first glance, the prosecutor should not make an unqualified declaration of guilt. For example

HUDOC - European Court of Human Rights

The HUDOC database provides access to the case-law of the Court (Grand Chamber, Chamber and Committee judgments and decisions, communicated cases, advisory opinions and legal summaries from the Case-Law Information Note), the European Commission of Human Rights (decisions and reports) and the...

hudoc.echr.coe.int

ETA2
Is an interesting question how this HCW statement jibes with Article 6

Madeleine McCann: Public 'would reach same conclusion' on suspect

Prosecutor says if public "knew the evidence we had" they would think Madeleine McCann was killed.

www.bbc.com

If CB has a clear cut case of a human rights breach then what exactly are he and his team waiting for?

 

[Lyall0814]

You're allowed to say whatever you want, whenever you want, but personally I have chosen to reserve judgement until such a time as the full facts are known. I don't think that's unreasonable, and you wouldn't expect a judge to decide a question of guilt with only some of the evidence presented would you?

But you keep attacking us for thinking whatever we want, sometimes quite stridently. This isn't a police fansite, it's a site full of discussions about cases in which police and prosecutors were certain about who was guilty. And they were wrong.

 

[mrjitty]

If CB has a clear cut case of a human rights breach then what exactly are he and his team waiting for?

Probably that he hasn't been charged yet.

The question is always what remedy you can get. I don't believe the ECHR can overturn local cases.

Any remedy in this particular case doesn't interest me much - I am more interested in whether this is actually appropriate. Everything I learned indicates not, and it would seem from a quick look at ECHR that you are not supposed to do that.

I have no idea what the domestic german law is on this. But I guess it aligns with ECHR

 

[Davieson]

If CB has a clear cut case of a human rights breach then what exactly are he and his team waiting for?

One step at a time ? He is in prison until 2026 after all so plenty of time. Currently they are challenging jurisdiction.

 

[Consider Dudley]

But you keep attacking us for thinking whatever we want, sometimes quite stridently. This isn't a police fansite, it's a site full of discussions about cases in which police and prosecutors were certain about who was guilty. And they were wrong.

The police are not always wrong. Sometimes they take a long time to solve a case. Sometimes to the outside world it may seem they are barking up the wrong tree when they are not. Anyone claiming to know from the offset that the Germans are on the wrong track and have screwed up completely is making this claim from a position of having an incomplete grasp of all the facts. Apologies if me expressing my point of view is seen as a strident attack. I thought I was being quite measured and that my point was a fair one.

 

[mrjitty]

One step at a time ? He is in prison until 2026 after all so plenty of time. Currently they are challenging jurisdiction.

Also he hasn't been charged in the MM case.

My interest in ECHR was more to investigate where the legal line lies on pre-charge/pre-trial publicity by public officials.

By analogy Germany will have a very similar line, but I don't have access/insight into what the domestic law is, or what the remedies are.

 

[Consider Dudley]

Probably that he hasn't been charged yet.

The question is always what remedy you can get. I don't believe the ECHR can overturn local cases.

Any remedy in this particular case doesn't interest me much - I am more interested in whether this is actually appropriate. Everything I learned indicates not, and it would seem from a quick look at ECHR that you are not supposed to do that.

I have no idea what the domestic german law is on this. But I guess it aligns with ECHR

Maybe, though surely if his human rights have been breached then they have been whether or not he is ever charged? Or are they only breached if charges and a trial follow the accusation?

 

[mrjitty]

Maybe, though surely if his human rights have been breached then they have been whether or not he is ever charged? Or are they only breached if charges and a trial follow the accusation?

Important to consider remedy

First ECHR is not an extra appeal to overturn domestic proceedings, and he hasn't been charged locally yet - so there are no proceedings.

Maybe he could bring an action domestically but i don't know what the remedy would be. So I suppose if they make anything of this, it would not be until he is actually charged. Then they could potentially argue that the prosecutor spoke in a predetermined manner. But again - i have no idea what the remedy is for that.

 

[Okapi]

But you keep attacking us for thinking whatever we want, sometimes quite stridently. This isn't a police fansite, it's a site full of discussions about cases in which police and prosecutors were certain about who was guilty. And they were wrong.

For me personally, I have to start from something more objective.

I am open to exploring logical explanations for the prosecution process, including technical explanations of how the German justice system works and yes, even how the MM case may appear to diverge from the norm in Germany, such as Mr Jitty is trying to illuminate.

 

[Lyall0814]

The police are not always wrong. Sometimes they take a long time to solve a case. Sometimes to the outside world it may seem they are barking up the wrong tree when they are not. Anyone claiming to know from the offset that the Germans are on the wrong track and have screwed up completely is making this claim from a position of having an incomplete grasp of all the facts. Apologies if me expressing my point of view is seen as a strident attack. I thought I was being quite measured and that my point was a fair one.

Your point is a fair one but so is ours.

It seemed very obvious in June and July 2020 that the German authorities were happy with media sensationalising and interfering with witnesses. That told me they were just speculating and the spokesperson's bullish comments were not to be taken seriously.

At least not in connection with MM anyway. It may well be they always intended the publicity to assist them in finding other offences to prosecute him for. If the five cases are eventually prosecuted they'll say their strategy was successful.

 

[Lyall0814]

For me personally, I have to start from something more objective.

I am open to exploring logical explanations for the prosecution process, including technical explanations of how the German justice system works and yes, even how the MM case may appear to diverge from the norm in Germany, such as Mr Jitty is trying to illuminate.

You're always the voice of reason and rationality

 

[enquirer6]

For me personally, I have to start from something more objective.

I am open to exploring logical explanations for the prosecution process, including technical explanations of how the German justice system works and yes, even how the MM case may appear to diverge from the norm in Germany, such as Mr Jitty is trying to illuminate.

One thing that might help, and might, also, be a minefield, is to seek comparisons with the way the English system works.

There definitely are paralells. Obviously England is much smaller than Germany, but in England, the senior criminal court is the Crown Court, and there are Crown Courts, all over the country, in pretty much all discticts of England. Yet in England, it needn't follow that a trial will take place in the vicinity of the person accused.

For example, Peter Sutcliffe lived in Yorkshire, committed his crimes in Yorkshire, and yet was tried at the Old Bailey in London, about 200 (odd) miles from Yorkshire, where he lived and committed his crimes.

ETA: In the case of Brueckner, an added complication is working out just where, exactly, he did live

 

[Davieson]

England is not a federal state so jurisdiction issues don't arise. Germany doesn't use a jury system.
So really the systems are chalk and cheese

 

[Mex]

England is not a federal state so jurisdiction issues don't arise. Germany doesn't use a jury system.
So really the systems are chalk and cheese

In England and Scotland which has its own legal system, it is possible to have a change of venue for trials.
When it is changed or even when change is not allowed, the business is conducted without brouhaha. It actually seems to be a very simple procedure; and without being too critical of another state's procedures I don't really see why being a federation is allowed to interfere in the due process of these five trials, as it has.

 

[Davieson]

In England and Scotland which has its own legal system, it is possible to have a change of venue for trials.
When it is changed or even when change is not allowed, the business is conducted without brouhaha. It actually seems to be a very simple procedure; and without being too critical of another state's procedures I don't really see why being a federation is allowed to interfere in the due process of these five trials, as it has.

Its the way the law is applied in Federal States. USA is similar.
One just has to accept that the legal systems of other countries are different to that of Britain.

 

[RichardKimble]

Its the way the law is applied in Federal States. USA is similar.
One just has to accept that the legal systems of other countries are different to that of Britain.

I wonder how many miscarriages they have ?

 

[Davieson]

I wonder how many miscarriages they have ?

Probably a lower percentage because they don't use a lay jury system where jurors can be nobbled or can be just plain thick and not really understand the case.

 

[RichardKimble]

Probably a lower percentage because they don't use a lay jury system where jurors can be nobbled or can be just plain thick and not really understand the case.

Although according to wiki there is one without a body trial ,that was a miscarriage or rather acquittal after a retrial.