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In an inquisitorial system of law, the examining magistrate (also called investigating magistrate, inquisitorial magistrate, or investigating judge), is a judge who carries out pre-trial investigations into allegations of crime and in some cases makes a recommendation for prosecution. The exact role and standing of examining magistrates varies from jurisdiction to jurisdiction; common duties and powers of the examining magistrate include overseeing ongoing criminal investigations, issuing search warrants, authorizing wiretaps, making decisions on pretrial detention, interrogating the accused person, questioning witnesses, examining evidence, and compiling a dossier of evidence in preparation for trial. Examining magistrates have an important role in the French judiciary, and are also a feature of the Spanish, Dutch, Belgian and Greek criminal justice systems, although the extent of the examining magistrate's role has generally diminished over time. Several countries, including Switzerland, Germany, Portugal, and Italy, have abolished the position of examining magistrate outright.
John Henry Merryman and Rogelio Pérez-Perdomo have described the examining magistrate's role in civil-law systems as follows:
The typical criminal proceeding in the civil law world can be thought of as divided into three basic parts: the investigative phase, the examining phase (the instruction), and the trial. The investigative phase comes under the direction of the public prosecutor, who also participates actively in the examining phase, which is supervised by the examining judge. The examining phase is primarily written and is not public. The examining judge controls the nature and scope of this phase of the proceeding. The examining judge is expected to investigate the matter thoroughly and to prepare a complete written record, so that by the time the examining stage is complete, all the relevant evidence is in the record. If the examining judge concludes that a crime was committed and that the accused is the perpetrator, the case then goes to trial. If the judge decides that no crime was committed or was that the crime was not committed by the accused, the matter does not go to trial.
The role of the examining magistrate is important in civil-law jurisdictions such as France, which have an inquisitorial system. In contrast, common-law jurisdictions such as England and the United States have an adversarial system and lack a comparable official. Frequent close interaction with police and prosecutors "may well condition examining magistrates to favor the long-term interests of regular participants over those of the accused." This problem also affects common-law jurisdictions, although it has been noted that "in the United States, the focus of concern has been the independence of counsel for the defense, while in France, concern focuses on the independence of the examining magistrate."
The examination phase has been described as "the most controversial aspect of criminal procedure" in civil-law jurisdictions because of "[t]he secrecy and length of the proceedings, the large powers enjoyed by examining magistrates" and "the possibility for abuse inherent in the power of the individual magistrate to work in secret and to keep people incarcerated for long periods." Some commentators, however, have compared the examining magistrate's role favorably to that of the grand jury in common-law systems. Scholar George C. Thomas III finds that while the grand jury as it exists in U.S. law is an effective investigative function, it lacks the screening functions that the French system has. Thomas notes that under U.S. Supreme Court precedent, U.S. prosecutors are not obliged to present exculpatory evidence to grand juries, and as a result grand jurors hear only evidence from the prosecution; by contrast, under the French system, the French examining magistrate operates as an investigator, and the indicting chamber acts as a screening body expressly responsible for seeking the truth.
Use of the examining magistrate has declined in Europe over time. Spain, France, Croatia, and the Netherlands are among the few countries to retain the practice, and in all of these nations the examining magistrate's role has been diminished, with a general trend of restricting the examining magistrate's involvement to only "serious crimes or sensitive cases" or having the examining magistrate share responsibility with the public prosecutor. Switzerland, Germany, Portugal, and Italy have all abolished the examining-magistrate system.
In France, the investigative judge (juge d'instruction, "judge of inquiry") has been a feature of the judicial system since the mid-19th century, and the preliminary investigative procedure has been a part of the judicial system from at least the 17th century. The sweeping powers traditionally entrusted to the juge d'instruction were so broad that Honoré de Balzac called the examining magistrate "the most powerful man in France" in the 19th century. In a celebrated although exaggerated passage, de Balzac wrote that "No human authority, neither the king nor the minister of justice nor the prime minister can intrude on the power of the examining magistrate, no one can stop him, nobody gives him orders. He is sovereign, obeying only his conscience and the law."
Later, however, the authority of the examining magistrates in France diminished in a series of reforms. In 1985, French justice minister Robert Badinter proposed limiting the examining magistrate's role in making custody decisions; Badinter's successor, Albin Chalandon made the same proposal two years later. In 1990, Justice Minister Pierre Arpaillange convened a Human Rights Commission (Justice Penale et Droits de l'Homme), led by the legal scholar Mireille Delmas-Marty. The commission concluded that France's criminal procedure code violated human rights standards, noting that the examining magistrate combined investigative and judicial powers in a single person. The commission proposed a package of due process reforms, including the abolition of the post of examining magistrate and the creation of a "liberty judge" (juge des libertés) in its place. Under the proposed system, the prosecutor and the police would have sole responsibility for conducting the investigation, and the liberty judge would be charged with overseeing pre-trial investigations. This proposal prompted an outcry from the conservative judiciary, as well as from scholars and the media; "in the context of repeated investigations of Socialist Party officials, the proposition appeared self-interested." Less-extensive reforms were adopted instead; legislation coming into effect in 1994 provided a right to counsel for persons in police custody (garde à vue), and also transferred the decision on bail and pretrial detention "to a team of magistrates not involved on the particular case." Almost immediately, however, opponents of the reforms mobilized, upset with the substantial changes to historic French practice; several magistrates resigned in protest. The new minister of justice, Pierre Méhaignerie pledged repeal, and the reforms were reversed in an August 1993 law. This law repealed the right to have counsel at the beginning of police detention (but retained the right to have counsel after 20 hours of detention); restored "the powers of the 'solitary' examining magistrate involved in the case to bail or remand"; and again restricted the accused's access to the investigative dossier.
Reforms resumed, however, in 2000 with the enactment of the Guigou Law, following the issuance of the report of the Truche Commission and a French criminal procedure code revision proposal by Michèle-Laure Rassat. Among other reforms, the 2000 law abolished the power of the examining magistrate to remand defendants into custody and created a new specialized judicial officer, the judge of liberty and detention (juge des libertés et de la détention) to make these determinations.
Renewed calls for further judicial reform to abolish or diminish the powers of the French examining magistrate intensified after a series of botched investigations, including what became known as the Outreau scandal; in that case, more than a dozen people near Boulogne were wrongfully imprisoned (and about half wrongfully convicted) on false charges of child abuse after a flawed investigation by an inexperienced juge. In 2009 and 2010, President Nicolas Sarkozy unsuccessfully attempted to abolish the examining-magistrate position as part of a broader package of legal reforms.
Today, examining magistrates (juges d'instruction) are one of four types of French magistrates, the others being trial judges (magistrats de siège), public prosecutors (magistrats debout), and policymaking and administrative magistrates at the Ministry of Justice. Each juge d'instruction is appointed by the president of France upon the recommendation of the Ministry of Justice and serve renewable three-year terms. Magistrates "can move between these four categories, and their career prospects may be subject to the political interests of the government (although promotions must be approved by a high council of the magistrature chaired in the past by the President of the Republic and now by the president of the cour de cassation)." This arrangement has prompted criticism on the ground that the judiciary is not fully independent of the government.
In 1996, political scientist Herbert Jacobs described the still-extensive powers and authority of the examining magistrate:
The examining magistrate ... is responsible for assuring the quality of the investigation that underlies the prosecution, enjoys sweeping powers. In serious cases the magistrate directs the investigation personally, ordering any potentially relevant witnesses too appear and authorizing searches of premises, seizure of financial records, examination by experts and viewings of physical evidence as he or she sees fit. The examining magistrate can delegate some investigatory decisions to police, but the responsibility lies ultimately with the magistrate.
Examining magistrates initiate an investigation upon an order of the procureur (public prosecutor), or upon the request of a private citizen.The juge d'instruction may issue search warrants, order the seizure of necessary evidence, compel witnesses to appear and give evidence, and request expert testimony; at an investigative hearing, the judge may have witnesses confront each other or the accused. They may also authorize wiretaps. At a later plenary hearing in open court, the investigative judge may issue an order of non-lieu ("no case") or if the evidence is sufficient will commit the case to the trial court. Charges of a serious misdemeanor or lesser felonies go to the criminal court directly. In contrast, major felonies are referred to the Court of Appeal for the pretrial hearing. The Court of Appeal decides whether to approve the juge's recommendation, and if it does the case is turned over to the Assize Court. Examining magistrates are not involved at trials, although in France, criminal trials are "in many respects a continuation of the pretrial investigation" with the trial judge acting as the leading figure in the examination of witnesses.
In the year 2000, only about 7% of criminal investigations in France were directed by a juge d'instruction. By 2010, that number had declined further to 4%, with police overseeing the rest. Notably, in 2002, there were 562 investigating magistrates in France, with some 60,000 investigations ongoing at any given moment, so caseloads were large and so individual attention to each was difficult. Nevertheless, examining magistrates "are seen as important, independent arbiters, examining the most sensitive and serious allegations." A few examining magistrates, such as Renaud Van Ruymbeke, Thierry Jean-Pierre, and Éric Halphen have become widely known for their investigations into corruption and political scandal; such figures have investigate high-level government officials, including prime ministers and made widely publicized visits to the headquarters of the major French political parties, reflecting their broad powers.
In Spain, a juez de instrucción is an examining judge, and a juzgado de instrucción is the office of an examining judge. Each investigating judge is responsible for investigating "all kind of criminal cases committed in his district, except those cases that fall under the jurisdiction of the National Court (Audencia Nacional) or where another court has jurisdiction ratione personae." In addition to investigating crimes of all sorts, "the investigating judges are competent to try petty offense cases."
Among the most famous Spanish investigating judges was Baltasar Garzón, a polarizing figure known for investigating high-profile corruption and human rights cases. Garzón was known for invoking the doctrine of universal jurisdiction to issue an international arrest warrant for Chilean dictator Augusto Pinochet, leading to his apprehension in London in 1998. Garzón also gained attention for overseeing an inquiry into atrocities committed during the Spanish Civil War (despite a 1977 amnesty act) and human rights abuses committed during the dictatorship of Francisco Franco. Garzón was convicted of illegal wiretapping in 2012 and was suspended from the bench for 11 years.
In Belgium, criminal proceedings are usually initiated by the public prosecutor (Procureur des Konings or procureur du roi), who typically decides whether to issue a summons to a suspect ordering him or her to appear in court. However, in "more serious or complicated cases" the prosecutor can defer to matter to the examining magistrate (onderzoeksrechter or juge d'instruction), who is an independent judge and member of the court of first instance (Rechtbank van eerste aanleg). The onderzoeksrechter has the power to question suspects, but not under oath; he or she may also question witnesses, issue search warrants, and issue detention orders. The onderzoeksrechter generates a report on the outcome of the investigation and then refers it to the raadkamer, an arm of the court, to decide whether to dismiss the case, allow it to proceed, or (in certain circumstances) to refer it to another court. The role of the onderzoeksrechter role is unusual, because he or she is simultaneously a judge and an officer of the police judiciaire.
In the Netherlands, the position of examining magistrate has existed since 1926, and the powers of the office were strengthened in 1999. Dutch public prosecutors are charged with supervising criminal investigations and ensuring the "legitimacy, fairness and overall integrity" of the investigation and pretrial proceedings. In addition to their investigative role, examining magistrate is also charged with making determinations as to the lawfulness of arrests and as to pretrial detention. The examining magistrate specifically reviews the public prosecutor's request to use some intrusive special investigative techniques when the prosecutor requests the magistrate to do so. For the most intrusive modes of investigation, such as wiretapping or other telecommunication intercepts, public prosecutors must secure the approval of the examining magistrate.
In Latin America, the investigative (sumario or instrucción) phase of a criminal prosecution was historically overseen by an examining magistrate, preceding the trial (plenario) phase. In the first phase, an examining magistrate interviewed the witnesses, questioned the accused, examined evidence, and created a dossier before making a recommendation to the trial judge as to whether the defendant should be discharged or tried. Formerly, in Chile, Paraguay, Uruguay, and Venezuela, "no distinction was made between the examining magistrate, who is responsible for the investigation, and the judge, who issues the rulings. This distinction was considered very important in Europe, where these functions were separated to promote the impartiality of the court." By the end of the 20th century, most Latin American countries followed Germany in eliminating the examination phase.
Italy abolished the examining magistrate in 1989, as part of a broader overhaul of the Italian Code of Criminal Procedure. The reform transferred the investigative functions of the examining magistrate to public prosecutors, who in Italy are also considered judges. The reform transferred the oversight functions of examining magistrates to newly created judges of the preliminary investigation with specified duties, including the issuance of search warrants, the authorization of wiretaps, and the decision on pretrial detention. The replacement of examining magistrates was not the only element of the 1989 reform that "marked a departure from the inquisitorial French tradition and partly subscribed to adversarial assumptions"; the code revision introduced cross-examination and negotiation between the parties, although it preserved some elements of the continental legal tradition.
Before 2011 Switzerland had four different models of inquiry: examining magistrate models I and II (Untersuchungsrichtermodell) and public prosecutor models I and II (Staatsanwaltschaftsmodell). Different cantons of Switzerland used different models. Under "examining magistrate model I" an independent examining magistrate directed the police investigation directly, and they public prosecutor was only a party in the case. Under "examining magistrate model II" the examining magistrate and the public prosecutor jointly directed pre-trial proceedings; "the examining magistrate acted not independently, but was bound by the public prosecutor's instructions." The "public prosecutor model I" followed the multiple-stage French system, in which (1) the public prosecution first directed the investigation by judicial police before transferring the matter to the independent examining magistrate; (2) the examining magistrate conducted examination independent of the prosecutor; and (3) at the end of the examining magistrate's inquiry, the case was returned to the public prosecutor, who made the ultimate decision on "whether to charge or discontinue the case." Finally, under "public prosecutor model II" the examining magistrate was absent altogether and the public prosecutor being the "master of preliminary proceedings" responsible for conducting the investigation, examination, charging decisions, and prosecution.
When the Swiss Code of Criminal Procedure came into effect in 2011, Switzerland adopted the latter model nationwide, abolished the position of examining magistrate that had previously existed in some cantons.