Madeleine McCann: German Prisoner Identified as Suspect, #39

[RichardKimble]

The rape trial was decided on the evidence not on CB's address in Portugal or Germany.

The five indictments cover a period of time when it was highly likely he was resident in Portugal. But he was an inveterate traveller.

Seriously! does it matter where a defendant lived (particularly since he lived most of his life out of a wheeled vehicle) surely the important locus is where he actually committed his crimes.
My opinion

BIB, clearly it does ,HCW quoted from the article I posted earlier.

We are not committed to keeping the case in Lower Saxony. You can believe me that the investigations tie up quite a lot of investigative capacity, which we can also contribute to other investigations. But there are rules of jurisdiction in the code of criminal procedure that you have to adhere to," said spokesman Christian Wolters at the request of hna.de

 

[Mex]

If one was to follow that line, then he should only be tried in Portugal for crimes committed in Portugal

That is your opinion which probably is not ratified by the facts in the cases we know of which Portuguese justice had been unable to address.

At a time when CB was operating under the radar he brutally raped DM in her villa in Praia da Luz which was in very close proximity to the apartment from which MM was abducted.

Snip
The paedophile suspected of abducting MM carried out a brutal rape at a beach front villa less than a mile from where the three-year-old disappeared in 2007.
CB broke into the secluded home two years before MM went missing from her family's apartment in the resort of Praia da Luz.
A 72-year-old American woman was tortured and raped by CB who filmed the savage attack. He was jailed last year for seven years by a German court after DNA evidence linked him to the assault.
The villa, called Casa Jacaranda, is just a ten-minute walk from the Ocean Village apartments where MM was sleeping in a ground floor apartment when she was snatched 13 years ago.

Luxury villa where new Madeleine McCann suspect raped a 72-year-old

EXCLUSIVE: Christian Brueckner broke into the secluded home two years before the three-year-old went missing from her family's apartment in the resort of Praia da Luz.

www.dailymail.co.uk

But for the interruption of the procedural jurisdiction issue, HB would possibly have had resolution of the vicious rape and torture she had been subjected to for whom CB is the prime suspect.

Snip
HB, now 39, was attacked inside a holiday apartment in Praia da Rocha - 10 miles from Praia da Luz, where Maddie vanished - in June 2004 by 'a German man with piercing blue eyes' who broke in via the balcony.
CB, who German prosecutors believe abducted Madeleine in May 2007, has now been charged with HB's rape and four other sex crimes carried out in the same area between 2000 and 2017.

Irish woman 'raped by Maddie suspect' speaks out after he is charged

Hazel Behan, now 39, was raped at knifepoint inside a holiday apartment in Praia da Rocha, Portugal, in June 2004 by a man she believes is Christian Brueckner.

www.dailymail.co.uk

One of the five charges CB faces probably shows the close relationship forged between the BKA and PJ regarding the prosecution of sex offenders in the pursuit of justice.
Given the date when the arrest was made, my opinion is that the PJ made way to allow the bigger picture by not prosecuting what would appear to be a 'slam dunk' case with the arresting officer (who probably saved the perp from serious injury) as a witness to the offense.

Snip
CB was seen with a blond man the night he was arrested for allegedly exposing himself to four children, aged eight to 12, in a park in 2017.

The German, 43, had been spotted ahead of the incident with a male companion of similar height as they attended a festival in the village of Messines, according to police sources.

The pair then went to the children's play area where CB is said to have hidden under a slide with his trousers round his knees.

An off-duty female police woman is thought to have challenged him before trying to keep the situation under control as four parents tried to rush toward him.

Madeleine McCann suspect Christian Brueckner 'had an accomplice'

Christian Brueckner was seen with a blond man the night he was arrested for allegedly exposing himself to four children, aged eight to 12, in the village of Messines in 2017.

www.dailymail.co.uk

 

[Mex]

FF was not on the team for the rape trial. I assume the defence team simply missed the issue.

And I agree that is likely what happened. Braunschweig got heavily invested in multiple investigations and charges - then the issue was raised in the pre-charge process and caught them flat footed. At that point, Braunschweig had no better option than trying to argue the toss in court but it seems to me that FF is likely correct on this issue.

We don't know what stage the issue is at. It seems there is both a reconsideration phase in the district court and an appeal phase. Who knows how far along it is.

The greatest achievement of the German prosecutors was in managing to conduct the DM rape trial independent of obvious association with the MM case.
That caught everyone on the back foot and allowed justice to be served when the evidence was allowed to be heard in its own right minus the MM prism.
My opinion

 

[mrjitty]

I'll simply note that pre-trial is when pretrial procedure happens - and trying to weaken the case via pre-trial motions is typical from defence teams in western democracies whether adversarial or not.

The presentation and testing of the evidence happens at trial - which we haven't had yet.

What happens pre-trial doesn't tell us that much about the trial content - it simply shapes the trial. But any defendant will try to get the case struck out pre-trial if he can, whether civil or criminal.

 

[Mex]

BIB, clearly it does ,HCW quoted from the article I posted earlier.

We are not committed to keeping the case in Lower Saxony. You can believe me that the investigations tie up quite a lot of investigative capacity, which we can also contribute to other investigations. But there are rules of jurisdiction in the code of criminal procedure that you have to adhere to," said spokesman Christian Wolters at the request of hna.de

Thank you for that.
However as time moves on so do current events. With the ending of the German court recess a new chapter will eventually unfold and we will discover what the next step in the legal proceedings will be. The decision reached by the lower court on jurisdiction has been subject to challenge.

Snip

Dispute over jurisdiction: Braunschweig public prosecutor's office lodges a complaint​

In the question of whether the Braunschweig judiciary is responsible for the suspect Christian B. and thus also for the Maddie case, the public prosecutor's office has meanwhile officially filed an appeal against the decision of the Braunschweig Regional Court to reject a currently filed charge against the now 46-year-old.
Snip
The public prosecutor's office, on the other hand, considers Braunschweig to be the man's last German place of residence. The justification is still pending. It has not yet been delivered to the district court, explains Christian Wolters, spokesman for the public prosecutor's office, on request. As soon as it is available, the court can re-examine its decision and, if necessary, amend it.

Fall Maddie: Staatsanwaltschaft Braunschweig bestätigt neue Suche

Bundeskriminalamt ist am Stausee in Portugal im Einsatz. Wohnort-Streit: Zuständigkeit der Braunschweiger Justiz für Christian B. weiterhin unklar.

www.braunschweiger-zeitung.de

 

[Mex]

I'll simply note that pre-trial is when pretrial procedure happens - and trying to weaken the case via pre-trial motions is typical from defence teams in western democracies whether adversarial or not.

The presentation and testing of the evidence happens at trial - which we haven't had yet.

What happens pre-trial doesn't tell us that much about the trial content - it simply shapes the trial. But any defendant will try to get the case struck out pre-trial if he can, whether civil or criminal.

My understanding of German law is scant and has mostly been gleaned from posts made on this forum by informative contributors.

After indictment all the evidence is shared between prosecution and defence. No secrets and no surprises. If the evidence doesn't come up to scratch that would constitute grounds for dismissal.

With regard to the five cases for which charges had been laid there appears to be not a single objection to any of the evidence presented in any of the five cases. Not one objection!

Instead of evidence a procedural issue was substituted.

Suggesting that CB's legal representatives realised they were having to defend the indefensible as indicated by the evidence to all of which they had access. What to do about that?
My opinion

Snip​

MM suspect: defence lawyer pulls ‘rabbit out of hat’​

Madeleine McCann suspect: defence lawyer pulls ‘rabbit out of hat’

Madeleine McCann suspect: defence lawyer pulls ‘rabbit out of hat’; Prosecutors who claimed ‘concrete evidence’ have no jurisdiction for case

www.portugalresident.com

 

[RichardKimble]

FF didn't need to challenge any evidence, as of this moment the charges were/are dropped, it all maybe procedural at the moment, no doubt if indictments are again made I'd venture that FF having had the extra time to read them will contest any points that cast doubt on the prosecution evidence.

 

[Davieson]

FF didn't need to challenge any evidence, as of this moment the charges were/are dropped, it all maybe procedural at the moment, no doubt if indictments are again made I'd venture that FF having had the extra time to read them will contest any points that cast doubt on the prosecution evidence.

Yes, I do think its a question priority. First step is to challenge potential legality issues. Only if charges go ahead is it necessary to mount a defence against the evidence presented in each individual case.

Why fight a case if you can get it dismissed ?

 

[RichardKimble]

Yes, I do think its a question priority. First step is to challenge potential legality issues. Only if charges go ahead is it necessary to mount a defence against the evidence presented in each individual case.

Why fight a case if you can get it dismissed ?

As mrjitty points out, it's pre trial procedures and they can't really be raised after a trial as begun, at least jury selection isn't an issue.

 

[mrjitty]

I don't think I can really explain this any better so I am not going to post about it further.

The idea that getting the charges dismissed is somehow proof of the weakness of the defence case is just foreign to me. It doesn't say anything about either sides case.

 

[Mex]

FF didn't need to challenge any evidence, as of this moment the charges were/are dropped, it all maybe procedural at the moment, no doubt if indictments are again made I'd venture that FF having had the extra time to read them will contest any points that cast doubt on the prosecution evidence.

My understanding of the preliminary opportunity given by access to the evidence is to do exactly what you indicate it to be.

It is not a mini trial.

It is an opportunity to peruse the quality of the evidence to decide whether or not it is of a standard which justifies going to trial based on what it says.
Exactly mirroring the function of the Procurator Fiscal's Office in Scots Law and the function of the Crown Prosecution Service in the rest of the UK, who decide if the evidence is of a quality which justifies proceeding to trial.

FF and his team did not challenge any of the evidence against CB which in itself is rather telling.
My opinion

 

[Mex]

Yes, I do think its a question priority. First step is to challenge potential legality issues. Only if charges go ahead is it necessary to mount a defence against the evidence presented in each individual case.

Why fight a case if you can get it dismissed ?

Agreed. But the ruling is subject to appeal so nothing is set in tablets of stone. Particularly since there is absolutely no doubt that the evidence supporting five serious criminal indictments to the point of trial is there and is not going away.

 

[Davieson]

Agreed. But the ruling is subject to appeal so nothing is set in tablets of stone. Particularly since there is absolutely no doubt that the evidence supporting five serious criminal indictments to the point of trial is there and is not going away.

Too right. I can't even make out who makes the ruling, let alone who hears any appeal.
No doubt it'll all come clear in the long run.

 

[mrjitty]

My understanding of the preliminary opportunity given by access to the evidence is to do exactly what you indicate it to be.

It is not a mini trial.

It is an opportunity to peruse the quality of the evidence to decide whether or not it is of a standard which justifies going to trial based on what it says.
Exactly mirroring the function of the Procurator Fiscal's Office in Scots Law and the function of the Crown Prosecution Service in the rest of the UK, who decide if the evidence is of a quality which justifies proceeding to trial.

FF and his team did not challenge any of the evidence against CB which in itself is rather telling.
My opinion

BIB

Do you have a link to this? As far as I am aware we have no idea what submissions FF made to the Court

I think you are misunderstanding the preliminary phase. The Court makes an assessment of the evidence and decides if the matter is strong enough to go to trial. This is not the same as the CPS role. It's more like a prelimnary hearing, which is designed to make sure weak or defective cases don't come to trial.

 

[Mex]

BIB

Do you have a link to this? As far as I am aware we have no idea what submissions FF made to the Court

I think you are misunderstanding the preliminary phase. The Court makes an assessment of the evidence and decides if the matter is strong enough to go to trial. This is not the same as the CPS role. It's more like a prelimnary hearing, which is designed to make sure weak or defective cases don't come to trial.

Snip
The indictment, which is more than 100 pages long, was preceded by several years of intensive and complex investigations in several European countries by the Federal Criminal Police Office, the public prosecutor said. The 45-year-old is a multiple-criminal sex offender who has been convicted of s***** a**** of children, among other things.

'The suspect's defense attorney, FF, told the German Press Agency that the allegations had been known for a long time and that nothing had changed in the situation.
"I think the evidence is weak in all cases," he said.

The court must first decide whether to admit the indictment.'

https://www-focus-de.translate.goog...tr_sl=de&_x_tr_tl=en&_x_tr_hl=en&_x_tr_pto=sc

Please find above the requested link. FF would have been constrained in that he would have been unable to discuss anything of a sub judice nature or what submissions he might have made to the court.
Suffice it to say that the court admitted the indictment forcing him to show his hand with the jurisdiction plea. Which was accepted. But against which an appeal has been lodged.

 

[mrjitty]

Snip
The indictment, which is more than 100 pages long, was preceded by several years of intensive and complex investigations in several European countries by the Federal Criminal Police Office, the public prosecutor said. The 45-year-old is a multiple-criminal sex offender who has been convicted of s***** *advertiser censored**** of children, among other things.

'The suspect's defense attorney, FF, told the German Press Agency that the allegations had been known for a long time and that nothing had changed in the situation.
"I think the evidence is weak in all cases," he said.

The court must first decide whether to admit the indictment.'

https://www-focus-de.translate.goog...tr_sl=de&_x_tr_tl=en&_x_tr_hl=en&_x_tr_pto=sc

Please find above the requested link. FF would have been constrained in that he would have been unable to discuss anything of a sub judice nature or what submissions he might have made to the court.
Suffice it to say that the court admitted the indictment forcing him to show his hand with the jurisdiction plea. Which was accepted. But against which an appeal has been lodged.

Your point that I replied to was

FF and his team did not challenge any of the evidence against CB which in itself is rather telling.

We don't know what if any submissions the defence made up to this point. All we know is in the preliminary phase the Court found the evidence was sufficient to go to trial.

It's not common for the defence to be able to knock an indictment at this stage, as the bar to get to trial is significantly lower than proof beyond reasonable doubt.

In the german system the Court controls the process and the witnesses, so we will only really find out what the evidence is when the trial proper starts (hopefully it is not all suppressed).

It may be the case that the prosecution evidence is very strong and CB has not much of a defence to offer, but I don't think we can infer that simply by what has happened pretrial.

 

[frank-cole]

The greatest achievement of the German prosecutors was in managing to conduct the DM rape trial independent of obvious association with the MM case.
That caught everyone on the back foot and allowed justice to be served when the evidence was allowed to be heard in its own right minus the MM prism.
My opinion

Great point and IMO a very strong indicator of the strength & relentlessness of the BKA/the prosecutorial team. Since the begining my opinion has been that - being investigated by the BKA is the absolute worst case scenario for CB.

 

[Davieson]

Great point and IMO a very strong indicator of the strength & relentlessness of the BKA/the prosecutorial team. Since the begining my opinion has been that - being investigated by the BKA is the absolute worst case scenario for CB.

I agree, but not necessarily in connection with MM.

 

[Mex]

I agree, but not necessarily in connection with MM.

Indeed that may be so.
As we know the five serious crimes with which CB was charged are all stand alone ones allegedly committed at different times and in different places.

As was the rape and torture crime against DM.

The comparison lies in the different treatment of crimes uncovered by MM investigators while conducting the search for evidence in the MM case.
DM's case proceeded undisturbed and to conclusion, I suggest because no-one made the connection between her aggravated rape and her assailant who at that time was the prime suspect in MM's case. In 2019 no-one knew that.

German prosecutors and the BKA were constitutionally obliged to prosecute crime as and when it was discovered. (only now is there a discretion allowed for minor crimes)

Five similarly serious sexual crimes against other women remain unresolved almost a year after CB was indicted for them because the MM association has been made with the prime suspect in her case. CB's name now being in the public domain which it wasn't in 2019.
My opinion

Snip
German law has traditionally taken a strong stand against prosecutorial discretion, considering such discretion to be inconsistent with the rule of law and a violation of the principles of equal justice. Even today German law gives the prosecutor no discretion in the most serious cases and explicitly requires the prosecutor (and therefore the police as well) to investigate and prosecute every crime that is committed.

https://bjs.ojp.gov/content/pub/pdf/gap.pdf

 

[mrjitty]

The reason the rapes in the video weren't prosecuted back in '19 is they didn't have the victims. I think we can safely assume these alleged rapes were never reported. When the public appeal didn't produce the victims, but produced a new alleged victim who claims to ID the accused, the prosecutor's case was strong enough to move forward on all 3. HBs case has moved on a fairly normal timetable IMO.