New German suspect in Madeleine McCann mystery disappearance.

[Robittybob1]

The Germans might have found some unknown DNA on Brueckner's clothing or possessions which they think could belong to Madeleine.

Even another DNA sample that could link the two places would be of use IMO.

[Mr Gray]

In France The Judge de Instruction does have the right to question suspects.  Not sure what happens if the suspect refuses to answer.

Is that at trial, Ive never heard of judges questioning suspects. I'm sure the right to silence is pretty well universal.
it's covered by the ECHR right to  a fair trial.

Rights

The directive sets out fundamental rights of an accused or suspected person in a criminal proceeding:

innocentuntil proven guilty
EU countries must take steps to ensure that public statements by public authorities and judicial decisions (other than those on guilt) do not refer to the person as being guilty
EU countries must also take steps to ensure that suspected or accused persons are not presented as being guilty in court or in public by physically restraining them;
burden of proof on the prosecution;
right to remain silent and not to incriminate oneself;


note the right to the presumption of innocence applies to suspects.

[Gertrude]

As Ive said you dont need to be charged before being questioned as a suspect. Afaiaa every suspect has the right to silence in just about any civilised country. You quote doesnt  support questioning by a judge...Ive never heard of a judge questioning a suspect...it refers to a summons for by a judge for questioning...similar to a warant for an arrest I would think.
Your link seems to be referring to being a witness..not a suspect

I didn't say he couldn't remain silent.  He has not been charged with anything at this stage so... has the same rights as a witness re. questioning. The police can not force you to attend questioning in Germany, they can request and you can refuse. Only a court summons in enforceable and then you would be up in front of a judge ( which is still a pre-trial phase) and you need to be charged for that summons. Avoiding questioning at this point is more serious as you have been charged and it can only go two ways after that - dismissed or a trial.

''The state prosecution but not the police (!)  may order the suspect to appear before them for interrogation (133 I &163a III 1 StPO) even though the suspect does not have to make a statement
 When interrogated by any of the aforementioned authorities, the suspect first has to be informed of the charges brought against him''

The 'state prosecution' is usually an investigative judge in serious cases.

https://books.google.co.uk/books/about/German_Legal_System_and_Laws.html?id=BkWcAQAAQBAJ&redir_esc=y

''If the public prosecutor or a court has called you for questioning (Vernehmung), you must attend. If you fail to respond you may be brought before the prosecutor or court by force. If you are called for questioning by the police you are not bound to attend.''

https://e-justice.europa.eu/content_rights_of_defendants_in_criminal_proceedings_-169-DE-maximizeMS-en.do?clang=en&idSubpage=3

[Mr Gray]

I didn't say he couldn't remain silent.  He has not been charged with anything at this stage so... has the same rights as a witness re. questioning. The police can not force you to attend questioning in Germany, they can request and you can refuse. Only a court summons in enforceable and then you would be up in front of a judge ( which is still a pre-trial phase) and you need to be charged for that summons. Avoiding questioning at this point is more serious as you have been charged and it can only go two ways after that - dismissed or a trial.

''The state prosecution but not the police (!)  may order the suspect to appear before them for interrogation (133 I &163a III 1 StPO) even though the suspect does not have to make a statement
 When interrogated by any of the aforementioned authorities, the suspect first has to be informed of the charges brought against him''

The 'state prosecution' is usually an investigative judge in serious cases.

https://books.google.co.uk/books/about/German_Legal_System_and_Laws.html?id=BkWcAQAAQBAJ&redir_esc=y

''If the public prosecutor or a court has called you for questioning (Vernehmung), you must attend. If you fail to respond you may be brought before the prosecutor or court by force. If you are called for questioning by the police you are not bound to attend.''

https://e-justice.europa.eu/content_rights_of_defendants_in_criminal_proceedings_-169-DE-maximizeMS-en.do?clang=en&idSubpage=3

i think you will find witnesses and suspects have different rights when it comes to answerring questions. you still havent shown taht a judge is responsible for questioning...ive never heard of a judge questioning a suspect. a judge can issue  awarrant for an arrest for questioning but the judge doesnt carry out the questioning

[Eleanor]

Is that at trial, Ive never heard of judges questioning suspects. I'm sure the right to silence is pretty well universal.
it's covered by the ECHR right to  a fair trial.

Rights

The directive sets out fundamental rights of an accused or suspected person in a criminal proceeding:

innocentuntil proven guilty
EU countries must take steps to ensure that public statements by public authorities and judicial decisions (other than those on guilt) do not refer to the person as being guilty
EU countries must also take steps to ensure that suspected or accused persons are not presented as being guilty in court or in public by physically restraining them;
burden of proof on the prosecution;
right to remain silent and not to incriminate oneself;


note the right to the presumption of innocence applies to suspects.

A Judge de Instruction is a bit like a Magistrate.  It's Pre Trial.

[Mr Gray]

I didn't say he couldn't remain silent.  He has not been charged with anything at this stage so... has the same rights as a witness re. questioning. The police can not force you to attend questioning in Germany, they can request and you can refuse. Only a court summons in enforceable and then you would be up in front of a judge ( which is still a pre-trial phase) and you need to be charged for that summons. Avoiding questioning at this point is more serious as you have been charged and it can only go two ways after that - dismissed or a trial.

''The state prosecution but not the police (!)  may order the suspect to appear before them for interrogation (133 I &163a III 1 StPO) even though the suspect does not have to make a statement
 When interrogated by any of the aforementioned authorities, the suspect first has to be informed of the charges brought against him''

The 'state prosecution' is usually an investigative judge in serious cases.

https://books.google.co.uk/books/about/German_Legal_System_and_Laws.html?id=BkWcAQAAQBAJ&redir_esc=y

''If the public prosecutor or a court has called you for questioning (Vernehmung), you must attend. If you fail to respond you may be brought before the prosecutor or court by force. If you are called for questioning by the police you are not bound to attend.''

https://e-justice.europa.eu/content_rights_of_defendants_in_criminal_proceedings_-169-DE-maximizeMS-en.do?clang=en&idSubpage=3

portugal makes it very clear and Im fairly sure its the same throughout Europe. A suspect can lie. if  awitness lies that can be charged with perverting the course of justice.

[Mr Gray]

A Judge de Instruction is a bit like a Magistrate.  It's Pre Trial.

Is this once a suspect has been charged...like an arraignment in the US. I simply cant see a judge or  amagistrate being involved in the initial questioning of a suspect

An arraignment is usually the first part of the criminal procedure that occurs in a courtroom before a judge or magistrate. The purpose of an arraignment is to provide the accused with a reading of the crime with which he or she has been charged.

[Eleanor]

Is this once a suspect has been charged...like an arraignment in the US. I simply cant see a judge or  amagistrate being involved in the initial questioning of a suspect

They aren't what we call proper Judges.  They are there to decide if there is a case to answer and if they so decide then the case is sent to trial.

They have been known to get it wrong.

[Gertrude]

i think you will find witnesses and suspects have different rights when it comes to answerring questions. you still havent shown taht a judge is responsible for questioning...ive never heard of a judge questioning a suspect. a judge can issue  awarrant for an arrest for questioning but the judge doesnt carry out the questioning

You don't understand. He is subject to the same rights on questioning as a witness at this stage. The same parts of the german criminal code apply to them both on questioning He is not the equivalent of a 'suspect' in UK law...yet

With regards to the judge I showed you this, why are you ignoring it?

'If the public prosecutor or a court has called you for questioning (Vernehmung), you must attend. If you fail to respond you may be brought before the prosecutor or court by force. If you are called for questioning by the police you are not bound to attend.''

Who sits in a court?  If you don't answer that honestly then I will assume you are being silly.

[Gertrude]

Is this once a suspect has been charged...like an arraignment in the US. I simply cant see a judge or  amagistrate being involved in the initial questioning of a suspect

An arraignment is usually the first part of the criminal procedure that occurs in a courtroom before a judge or magistrate. The purpose of an arraignment is to provide the accused with a reading of the crime with which he or she has been charged.

A judge can be involved at first questioning as the defendant has a right to refuse to show up for the first questioning!

'1) The accused shall be summoned in writing to the examination.

(2) The summons may include a warning that the accused will be brought before the court in the case of non-compliance'

[Carana]

It is Inquisitorial, as in a judge would interrogate...but this is the point I've been trying to make;

'“The degree of suspicion needed to open an investigation (Anfangsverdacht) based on ascertainable facts is not very high, though; it need only make it appear possible that, according to criminal experience, an offence may have been committed.”

Excerpt From: Bohlander, Michael. “Principles of German Criminal Procedure.”

Based on this and what he has said ( for me at least) it confirms the Prosecutor, based on experience believes it possible the crime has been committed. The UK press don't understand that and have jumped on the word 'concrete' thinking it means he has a piece of concrete evidence.

Thanks for digging that out, Gertrude.

My understanding is that a case would only go to court if there is a stronger likelihood of a conviction than an acquittal (much like elsewhere, in theory). There would appear to be some circumstantial evidence at least, but no hard evidence (as in a body) for the moment, hence the appeal.

I'm not sure if his reasoning is that if there's no information that she's alive, then she's dead; or whether there is some type of concrete but indirect evidence (e.g., pyjamas found somewhere that linked to him).

[Hans Christian Wolters] admitted he does not have enough "hard evidence" for the suspect to go on trial.

(...)
He told Sky News: "After all the information we got, the girl is dead. We have no information that she is alive.


"All indications we have got that I can't tell you point in the direction that Madeleine is dead.

"We got things we cannot communicate that speak for the theory that Madeleine is dead, even if I have to admit that we don't have the body."


https://news.sky.com/story/madeleine-mccann-german-prosecutor-has-evidence-british-girl-is-dead-12003094

[Mr Gray]

You don't understand. He is subject to the same rights on questioning as a witness at this stage. The same parts of the german criminal code apply to them both on questioning He is not the equivalent of a 'suspect' in UK law...yet

With regards to the judge I showed you this, why are you ignoring it?

'If the public prosecutor or a court has called you for questioning (Vernehmung), you must attend. If you fail to respond you may be brought before the prosecutor or court by force. If you are called for questioning by the police you are not bound to attend.''

Who sits in a court?  If you don't answer that honestly then I will assume you are being silly.

I think you are getting a lot wrong. There is a difference between being questioned as a witness or a suspect. this is a basic principle in law as i've explained....its you who doesnt understand.

This part in red seems similar to the UK. The police can request you attend for questioning ...you are not forced to attend. A judge may issue a warrant for your arrest...that doesnt mean the judge will carry out the questioning.

You have accused me of not understanding... I would say its you who doesnt understand.....you dont seem to understand the difference between a witness and a suspect

[Eleanor]

In an inquisitorial system of law, the examining magistrate, is a judge who carries out pre-trial investigations into allegations of crime and in some cases makes a recommendation for prosecution. Wikipedia

[Mr Gray]

A judge can be involved at first questioning as the defendant has a right to refuse to show up for the first questioning!

'1) The accused shall be summoned in writing to the examination.

(2) The summons may include a warning that the accused will be brought before the court in the case of non-compliance'

you have supplied nothing to show the judge would question the suspect. i think your claim is ridiculous...police question suspects in order to build  a case...this is not the job of a judge

[Mr Gray]

In an inquisitorial system of law, the examining magistrate, is a judge who carries out pre-trial investigations into allegations of crime and in some cases makes a recommendation for prosecution. Wikipedia

I dont recall anyone in the McCann case being questioned by a judge..