Madeleine McCann: German Prisoner Identified as Suspect, #38

[Davieson]

Don't see why there's any puzzlement, its obviously just the way German law works. They do deem to be taking a long time to reach a decision though

 

[mrjitty]

The act doesn’t allow criminals to pick and choose which is their preferred court – they’ve just got to take pot luck I think, as long as the proceedings are in Germany.

The issues covered by crimes against humanity such as rape, other crimes of a sexual nature and torture are also features of indictments enacted against CB at the beginning of October 2022.

Everyone concurs I think with the fact that Germany has jurisdiction over CB just as they have jurisdiction over any German national who commits offences either at home or abroad.

Where that accord is on rocky ground is puzzlement as to the way in which jurisdiction within Germany is dictating the terms of due process as the October anniversary of the five indictments against CB looms ever nearer.

My opinion

The criminal does not pick and choose the Federal jurisdiction. The respective legislatures did that when they wrote the rules on which Bundesland has jurisdiction. The respective Courts then decide whether to assert jurisdiction or not. Jurisdiction is a key part of due process.

Universal jurisdiction is about extra territorial jurisdiction i.e, extending Germany's criminal jurisdiction to include crimes against humanity with no connection to Germany where it would not otherwise have jurisdiction. It's not about the question of which federal court has domestic jurisdiction over a german national who committed a crime abroad.

The principle of universal jurisdiction provides for a state’s jurisdiction over crimes against international law even when the crimes did not occur on that state's territory, and neither the victim nor perpetrator is a national of that state. The principle allows national courts in third countries to address international crimes occurring abroad, to hold perpetrators criminally liable, and to prevent impunity.

Universal jurisdiction

 

[enquirer6]

ETA: This was intended to be a reply to Mr Jitty's post at 4.53:

This act is for genocide and crimes against humanity. Not relevant in this case.
Germany already has jurisdiction over CB. The discussion is about which particular court has jurisdiction. No one disputes the general jurisdiction.

XXXXXXXXXXXXXXXXX

My reply

You didn't read your own link. Included in the list of crimes covered by the Act are wilful killing (murder) and sexual violence (rape)

https://www.justiceinitiative.org/uploads/0b3c66af-68e0-4fd3-a8e0-d938a6e2b43b/universal-jurisdiction-law-and-practice-germany.pdf

1.2.2. Willful killing16
The crime of willful killing is defined in accordance with Article 7(1)(a) Rome
Statute. The Rome Statute uses the term “murder” whereas Section 7 VStGB
uses the term “killing a person.” The reason for the difference in language is that
the term “murder” as used in the general German criminal law would require
additional elements that are not necessary under the Rome Statute

 

[frank-cole]

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?

Well said. FF loves a technicality & a bit of paperwork. If there was an opportunity to take this to the ECHR he would have taken it 3 years ago. The Germans are respecting their privacy laws & prosecutors do make serious accusations. They can’t put a handle on what the press do, especially the British press. There’s no hurt feelings law that CB qualifies for.


I think there’s more chance of Elton John, dressed as a meerkat, winning the Olympic javelin final with a world record 300 metre throw than there is of the ECHR stepping in quashing the charges & freeing CB. It won’t happen.

 

[mrjitty]

ETA: This was intended to be a reply to Mr Jitty's post at 4.53:

This act is for genocide and crimes against humanity. Not relevant in this case.
Germany already has jurisdiction over CB. The discussion is about which particular court has jurisdiction. No one disputes the general jurisdiction.

XXXXXXXXXXXXXXXXX

My reply

You didn't read your own link. Included in the list of crimes covered by the Act are wilful killing (murder) and sexual violence (rape)

Only in the context of a crime against humanity. You'll see a prosecution there against a Syrian national for a crime committed during the war there. He is not a german national, and the crime had no connection to germany. That is the point of the creation of universal jurisdiction where jurisdiction would not exist for crimes against humanity.

Crimes against humanity are set forth in section 7 of the CCAIL and punish “anyone who commits (the crimes listed in section 7) in the context of an extensive or systematic attack against a civilian population.” Crimes against humanity include crimes such as willful killing, extermination, enslavement, deportation or forced transfer of persons, torture, sexual violence, enforced disappearance, and persecution. They are punishable with a minimum sentence of three years in prison and up to life in prison.

Seeing CB was not involved in crimes against humanity, and is in fact a german national, this has no relevance.

You seem to be getting mixed up between whether Germany has jurisdiction in the case (yes) and which german federal state has jurisdiction domestically (at issue).

 

[mrjitty]

Well said. FF loves a technicality & a bit of paperwork. If there was an opportunity to take this to the ECHR he would have taken it 3 years ago. The Germans are respecting their privacy laws & prosecutors do make serious accusations. They can’t put a handle on what the press do, especially the British press. There’s no hurt feelings law that CB qualifies for.


I think there’s more chance of Elton John, dressed as a meerkat, winning the Olympic javelin final with a world record 300 metre throw than there is of the ECHR stepping in quashing the charges & freeing CB. It won’t happen.

No one is suggesting this. The ECHR has no such powers.

 

[RichardKimble]

Well said. FF loves a technicality & a bit of paperwork. If there was an opportunity to take this to the ECHR he would have taken it 3 years ago. The Germans are respecting their privacy laws & prosecutors do make serious accusations. They can’t put a handle on what the press do, especially the British press. There’s no hurt feelings law that CB qualifies for.


I think there’s more chance of Elton John, dressed as a meerkat, winning the Olympic javelin final with a world record 300 metre throw than there is of the ECHR stepping in quashing the charges & freeing CB. It won’t happen.

Not sure where the ECHR comes into it, cases can only be taken there when all domestic remedies have been exhausted.CB is not even facing charges at this moment in time.

 

[mrjitty]

Not sure where the ECHR comes into it, cases can only be taken there when all domestic remedies have been exhausted.CB is not even facing charges at this moment in time.

I cited some ECHR stuff not to show that the ECHR would somehow give a remedy, but rather to show how presumption of innocence applies in Germany to pre-charge and pre-trial statements by public officials. It's in english so more convenient than trying to review underlying german law.

 

[RichardKimble]

I cited some ECHR stuff not to show that the ECHR would somehow give a remedy, but rather to show how presumption of innocence applies in Germany to pre-charge and pre-trial statements by public officials. It's in english so more convenient than trying to review underlying german law.

Probably misconstrued to get a point across.

 

[Consider Dudley]

I cited some ECHR stuff not to show that the ECHR would somehow give a remedy, but rather to show how presumption of innocence applies in Germany to pre-charge and pre-trial statements by public officials. It's in english so more convenient than trying to review underlying german law.

If has been stated CB has already had his human rights violated, how then does he seek redress and why isn’t that being actioned now? He is apparently suffering mightily in solitary confinement, is his lawyer not fighting tooth and nail to present a case for his release from such an egregious breach of his rights?

 

[mrjitty]

If has been stated CB has already had his human rights violated, how then does he seek redress and why isn’t that being actioned now? He is apparently suffering mightily in solitary confinement, is his lawyer not fighting tooth and nail to present a case for his release from such an egregious breach of his rights?

The statements were made in the context of a murder investigation where he hasn't been charged. It has nothing to do with him being in jail for other crimes. If anything is made of it at all, I'd imagine it won't be until he is actually charged in the MM case. But I don't know what remedies would be available, if any,

Personally that interests me far less than general scrutiny of the prosecutors office where such public statements are made. It does appear such statements are subject to restrictions.

 

[Consider Dudley]

The statements were made in the context of a murder investigation where he hasn't been charged. It has nothing to do with him being in jail for other crimes. If anything is made of it at all, I'd imagine it won't be until he is actually charged in the MM case. But I don't know what remedies would be available, if any,

Personally that interests me far less than general scrutiny of the prosecutors office where such public statements are made. It does appear such statements are subject to restrictions.

I was under the impression (perhaps erroneously) that CB and his lawyers viewed his solitary confinement as another breach of his human rights, a situation which is apparently causing him huge suffering.

 

[Consider Dudley]

The statements were made in the context of a murder investigation where he hasn't been charged. It has nothing to do with him being in jail for other crimes. If anything is made of it at all, I'd imagine it won't be until he is actually charged in the MM case. But I don't know what remedies would be available, if any,

Personally that interests me far less than general scrutiny of the prosecutors office where such public statements are made. It does appear such statements are subject to restrictions.

On your second point, one wonders why if HCW has dropped such a clanger by breaching his own office’s restrictions he wasn’t put out to grass years ago.

 

[enquirer6]

This act is for genocide and crimes against humanity. Not relevant in this case.

Germany already has jurisdiction over CB. The discussion is about which particular court has jurisdiction. No one disputes the general jurisdiction.

Relevant on this case:

Code of Crimes against International Law (Völkerstrafgesetzbuch – VStGB)

Points 1 and 5 are especially applicable to Brueckner

Brueckner is a serial rapist. Remains to be seen whether he has, also. committed murder.

 

[Consider Dudley]

Relevant on this case:

Code of Crimes against International Law (Völkerstrafgesetzbuch – VStGB)

Points 1 and 5 are especially applicable to Brueckner

Brueckner is a serial rapist. Remains to be seen whether he has, also. committed murder.

This is to do with war crimes I believe, not civilian on civilian crimes (unfortunately).

 

[mrjitty]

Relevant on this case:

Code of Crimes against International Law (Völkerstrafgesetzbuch – VStGB)

Points 1 and 5 are especially applicable to Brueckner

Brueckner is a serial rapist. Remains to be seen whether he has, also. committed murder.

I've already pointed out why it does not apply.

< Whoever, as part of a widespread or systematic attack directed against any civilian population >

 

[mrjitty]

This is to do with war crimes I believe, not civilian on civilian crimes (unfortunately).

Quite. And there is simply no need to make this argument. The german courts already have jurisdiction over CB as a german national.

Posters are getting mixed up between international and domestic jurisdiction.

 

[mrjitty]

On your second point, one wonders why if HCW has dropped such a clanger by breaching his own office’s restrictions he wasn’t put out to grass years ago.

I suspect he just got overexcited in that BBC quote about "if you knew what we knew"

 

[Consider Dudley]

I suspect he just got overexcited in that BBC quote about "if you knew what we knew"

I thought the objection was to him saying that they were convinced CB murdered Madeleine - if HCW's bosses thought that was beyond the pale and a breach of the judicial code then I'm surprised that he is still be allowed to act as spokesman for the investigation and not been booted off the case altogether.

 

[mrjitty]

I thought the objection was to him saying that they were convinced CB murdered Madeleine - if HCW's bosses thought that was beyond the pale and a breach of the judicial code then I'm surprised that he is still be allowed to act as spokesman for the investigation and not been booted off the case altogether.

Maybe they believe the statements tread the line of voicing suspicion without crossing over to announcing guilt