Madeleine McCann: German Prisoner Identified as Suspect, #39

[RichardKimble]

As a matter of interest, who will the Prosecutors Office be accountable to ?

Federal office of justice? But if Wolters is an employee of the Regional Court, which authority would he be appealing to?

 

[Davieson]

Yep, they're either competent or not, if his domicile is elsewhere let that court area who is the responsible get on with it rather than delay by an appeal.

I suppose an appeal to a higher courts establishes the issue once and for all, unless the appeal can be taken even further.

 

[Mex]

An important point is that Wolters can still investigate the MM case even if he does not have the power to prosecute

I agree that all the evidence indicates that MM's case will be taken as far as it will go by the German prosecutors. If the evidence rules CB out he will will be eliminated from the inquiry. If the evidence supports prosecution - he will be charged.
My opinion

 

[Mex]

I can't see that there will be anything to counter.
If the Brunswick court is deemed incompetent to hear these 5 cases, then the same ruling will apply to any further cases brought before it as the precedent will have been established.

I agree that the law runs on precedent. Which is why I find it so puzzling that the precedent for this jurisdiction procedural issue was not set at the first trial which actually went as far as a failed appeal to the European court.

The precedent has already been set.
My opinion

 

[Mex]

Yep, they're either competent or not, if his domicile is elsewhere let that court area who is the responsible get on with it rather than delay by an appeal.

Braunschweig was considered competent to prosecute the DM rape and nothing has changed since 2019. Not even the legal teams involved although I think FF has beefed up CB's representation.

 

[Mex]

I suppose an appeal to a higher courts establishes the issue once and for all, unless the appeal can be taken even further.

Could it be taken to the European court prior to a trial taking place?
If so this could go on for quite some time.

 

[Davieson]

I agree that the law runs on precedent. Which is why I find it so puzzling that the precedent for this jurisdiction procedural issue was not set at the first trial which actually went as far as a failed appeal to the European court.

The precedent has already been set.
My opinion

Did it ? Is there a cite for that ?

 

[Davieson]

Could it be taken to the European court prior to a trial taking place?
If so this could go on for quite some time.

What human rights could be involved in a dispute over court jurisdiction ?

 

[mrjitty]

An important point is that Wolters can still investigate the MM case even if he does not have the power to prosecute

Exactly.

 

[Mex]

Did it ? Is there a cite for that ?

Yes indeed there is a cite for that. There are actually numerous cites. Interestingly enough - not one of which complains of a miscarriage but as at now in the Braunschweig court, based only on what might be deemed a procedural technicality.

MM suspect CB 'made the most of Europe's open borders', EU court hears as he asks to be freed on a technicality over rape of 72-year-old woman​

• Christian Brueckner lawyers appeared at European Court of Justice on Thursday
• They claim his seven-year rape sentence should be overturned
• He is serving 21-month drugs sentence and is set to start rape sentence
• Lawyers arguing it was a breach of international law to put him on trial for rape
• This is because he was extradited from Portugal in 2017 for a different crime
• Lawyers claim Germany needed Portugal's consent to extradite him for one crime and try him for another

The prime suspect in the disappearance of MM has demanded to be freed from jail on a technicality over his conviction for raping a 72-year-old woman.

CB's lawyer FF appeared before a panel of judges at the European Court of Justice in Luxembourg on Thursday.

FF argued that it was 'unconstitutional' that CB had been tried for the brutal sex attack Praia da Luz in 2005 – two years before MM vanished from the same resort in May 2007 – because it breached international law.

Christian Brueckner goes to EU court to demand to be freed from jail

Christian Brueckner's lawyer Friedrich Fulscher appeared before a panel of judges at the European Court of Justice in Luxembourg on Thursday.

www.dailymail.co.uk

 

[mrjitty]

Did it ? Is there a cite for that ?

This issue wasn't raised at the rape trial. That is how Braunschweig got caught out. This would have all been sorted out years ago if the issue had been spotted by the defence before that trial.

 

[Mex]

What human rights could be involved in a dispute over court jurisdiction ?

Perhaps the same ones which were complained of in the European court regarding the rape conviction. Seems FF doesn't mind having two bites of the procedural cherry. The only option open to him when there is no possibility of overturning the evidence introduced to the trial judges.
My opinion

 

[Davieson]

Yes indeed there is a cite for that. There are actually numerous cites. Interestingly enough - not one of which complains of a miscarriage but as at now in the Braunschweig court, based only on what might be deemed a procedural technicality.

MM suspect CB 'made the most of Europe's open borders', EU court hears as he asks to be freed on a technicality over rape of 72-year-old woman​

• Christian Brueckner lawyers appeared at European Court of Justice on Thursday
• They claim his seven-year rape sentence should be overturned
• He is serving 21-month drugs sentence and is set to start rape sentence
• Lawyers arguing it was a breach of international law to put him on trial for rape
• This is because he was extradited from Portugal in 2017 for a different crime
• Lawyers claim Germany needed Portugal's consent to extradite him for one crime and try him for another

The prime suspect in the disappearance of MM has demanded to be freed from jail on a technicality over his conviction for raping a 72-year-old woman.

CB's lawyer FF appeared before a panel of judges at the European Court of Justice in Luxembourg on Thursday.

FF argued that it was 'unconstitutional' that CB had been tried for the brutal sex attack Praia da Luz in 2005 – two years before MM vanished from the same resort in May 2007 – because it breached international law.

Christian Brueckner goes to EU court to demand to be freed from jail

Christian Brueckner's lawyer Friedrich Fulscher appeared before a panel of judges at the European Court of Justice in Luxembourg on Thursday.

www.dailymail.co.uk

Ah right, but the ECHR case was about extradition from Italy for a different charge other than rape.
Not related to German federal court jurisdiction.

 

[mrjitty]

The extradition appeal relied on a protection against bait and switch. So for example a country applies to extradite someone on one set of charges, but then as soon as they get hold of them, they introduce the real charges. (This is what Assange alleged in resisting extradition to Sweden),

In any event, CB was clearly legitimately extradited, and then later charged for a further crime - so the appeal was correctly dismissed.

The rape trial doesn't set any kind of precedent for the current charges

 

[mrjitty]

Ah right, but the ECHR case was about extradition from Italy for a different charge other than rape.
Not related to German federal court jurisdiction.

Yes it doesn't have anything to do with the current jurisdiction issue.

it's common enough when you have been convicted to through the kitchen sink at long shot appeals based on points of law

 

[Mex]

This issue wasn't raised at the rape trial. That is how Braunschweig got caught out. This would have all been sorted out years ago if the issue had been spotted by the defence before that trial.

CB's defence are clutching at straws. Initially it has paid off by holding up the trial process in five serious crimes against women and children. With perhaps the added bonus of interfering with the MM prosecution.

As I have said before FF was backed into a corner on this one. The five indictments probably came as a shock which disallowed him keeping his powder dry for MM's case. Best laid plans and all that

Once jurisdiction for the five outstanding cases is settled the contingency plans prosecutors will have been working to will kick in to place (only the courts were in recess}. FF and CB have lost the element of surprise.

Isn't it odd how serving justice on a criminal can mean nothing as far as guilt or innocence is concerned, just so long as he tells them where he allegedly parks his van.
My opinion

 

[Mex]

The extradition appeal relied on a protection against bait and switch. So for example a country applies to extradite someone on one set of charges, but then as soon as they get hold of them, they introduce the real charges. (This is what Assange alleged in resisting extradition to Sweden),

In any event, CB was clearly legitimately extradited, and then later charged for a further crime - so the appeal was correctly dismissed.

The rape trial doesn't set any kind of precedent for the current charges

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

 

[RichardKimble]

This issue wasn't raised at the rape trial. That is how Braunschweig got caught out. This would have all been sorted out years ago if the issue had been spotted by the defence before that trial.

Did CB change his legal team after the DM trial and the new team is more switched on.
Even so reports said FF raised the issue at a preliminary hearing , HCW seemed to have proceeded possibly without regard to the contention of CBs domicile.
Looking at dates, charged in October no trial date was set, ,charges thrown out in April, (6 months) appeal by HCW say takes another 6 months takes it to at least October again if successful to even charge again, imo there's unlikely to be any trial this year.

 

[mrjitty]

Did CB change his legal team after the DM trial and the new team is more switched on.
Even so reports said FF raised the issue at a preliminary hearing , HCW seemed to have proceeded possibly without regard to the contention of CBs domicile.
Looking at dates, charged in October no trial date was set, ,charges thrown out in April, (6 months) appeal by HCW say takes another 6 months takes it to at least October again if successful to even charge again, imo there's unlikely to be any trial this year.

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.

 

[Davieson]

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

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