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Collien Fernandes’ lawyer has appealed against the transfer of her case against Christian Ulmen from Spain to Germany in order to preserve the jurisdiction of the Spanish judiciary.
The court in Mallorca had previously decided to hand over the proceedings to the German judiciary following a criminal complaint filed there by the presenter and actress against her ex-husband.
The argument is that the Spanish judiciary is not responsible for Fernandes’ complaint filed in Palma and that the proceedings will be handed over to the judiciary in Germany. The court explained that they were German citizens and that much of the evidence was in German. In addition, most of the alleged possible crimes were centered in Germany. The judge in Mallorca followed the arguments of the public prosecutor and the defense.
Collien Fernandes accuses Christian Ulmen of physically harassing her and stealing her identity for sexualized interactions online. According to her own statements, the 44-year-old deliberately made the complaint in Spain because stricter criminal law applies here with regard to digital sexual violence in particular. Ulmen’s lawyer made it clear that it was a one-sided presentation of false facts.
Which court really has jurisdiction?
While the court in Mallorca sees the focus of the allegations as being based on those involved in Germany, the legal battle points to a struggle for the more advantageous court location. In technical language, this is also called forum shopping (translated as “court shopping spree”). This refers to the targeted use of different court jurisdictions in order to bring a legal dispute before the court that is most favorable to one’s own side.
Legal parties often choose a particular court for the following reasons: Either it applies a legal system that grants the plaintiff more rights or higher compensation. Differences in the way evidence is often used in different countries can also play a role, as can the length of proceedings or the associated costs. In addition, a judgment from a certain country may be easier to enforce internationally.
What does that mean specifically for the Ulmen/Fernandes case? Spain is considered a pioneer in combating violence against women. Spanish criminal law contains specific provisions for digital harassment and unauthorized use of identities on social networks that go beyond German law. In Spain, a conviction for the alleged “digital violence” can result in more severe penalties than in Germany, where such acts can often only be viewed as insults or stalking.
This is different in Germany, where there are currently gaps in protection. This means that German criminal law currently does not have a uniform legal basis for cases of “virtual rape”, which is why different offenses are often treated, even though the offenses are comparable. Fernandes wants to circumvent these gaps in protection for victims, which make criminal prosecution more difficult, by going to a Spanish court.
However, when viewed soberly, the celebrity case shows that forum shopping is more difficult to implement in criminal law than in civil law, as the “crime scene principle” and the connection to the center of life weigh heavily here. However, simply by attempting to report the alleged crimes in Spain, Fernandes managed to initiate a discussion in Germany about tightening criminal law.
Potsdam (also) suspected crime scene
Legally, forum shopping in the Fernandes/Ulmen case has failed for the time being if nothing changes in the process. The court in Mallorca has formally declared itself incompetent and has referred the proceedings to Germany. The public prosecutor’s office in Itzehoe initially began an investigation here because of the initial suspicion of stalking. Responsibility has now been taken over by the Potsdam public prosecutor’s office. The jurisdiction lies here because the couple lived in Potsdam before moving to Mallorca and some of the alleged crimes are said to have been committed there.
However, the success of the appeal, as now sought by Collien Fernandes’ lawyer, is uncertain, as the connection to Germany, including the nationality of the two actors, their places of residence and the language of the evidence, is legally very strong.
