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{{Short description|Judge on pre-trial investigations}}
{{redirect|Investigating judge|the concept in French law|Investigating judge (France)}}
{{good article}}
In an [[inquisitorial system]] of law, theAn '''examining magistrate''' (alsois called '''investigating magistrate''', '''inquisitorial magistrate''', or '''investigatinga [[judge'''),]] isin aan [[judgeinquisitorial system]] of law who carries out pre-[[trial]] investigations into allegations of [[crime]] and in some cases makes a recommendation for [[prosecution]]. TheAlso known as an '''investigating magistrate''', '''inquisitorial magistrate''', or '''investigating judge''', the exact role and standing of examining magistrates varies fromby [[jurisdiction]]. to jurisdiction; commonCommon duties and powers of the examining magistrate include overseeing ongoing [[criminal investigation]]s, issuing [[search warrant]]s, authorizing [[wiretap]]s, making decisions on [[pretrial detention]], interrogating the accused person, questioning witnesses, examining evidence, andas well as compiling a dossier of evidence in preparation for trial.

[[Investigating Examiningjudge magistrates(France)|Investigating judge]]s in France have an important role in the [[French judiciary]],. andThey are also a feature of the Spanish, Dutch, Belgian and Greek [[criminal justice system]]s, although the extent of the examining magistrate's role has generally diminished over time. SeveralSince the late 20th and early 21st centuries, several countries, including Switzerland, Germany, Portugal, and Italy, have abolished the position of examining magistrate outright. In some cases, they have created new positions that take on some of these responsibilities.
 
==Role and description==
John Henry Merryman and Rogelio Pérez-Perdomo have described the examining magistrate's role in civil-law systems as follows:
 
{{quote|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.<ref name="auto14">{{Harvnb|Merryman|Pérez-Perdomo|2007|p=130}}</ref>}}
 
==Comparison to common-law systems==
{{Further|Adversarial system}}
The role of the examining magistrate is important in [[Civil law (legal system)|civil-law jurisdictions]] such as France, which have an [[inquisitorial system]]. In contrast, [[Common law|common-law]] jurisdictions such as [[England and Wales|England]] and the [[United States]] have an [[adversarial system]] and lack a comparable official.<ref>{{Harvnb|Jacob|1996|p=213}}</ref><ref>{{Harvnb|Encyclopædia Britannica|2002}}</ref> 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."<ref>{{Harvnb|Jacob|1996|p=212}}</ref> 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 judiciary|independence]] of the examining magistrate."<ref>{{Harvnb|Jacob|1996|pp=212–13}}</ref>▼
 
▲The role of the examining magistrate is important in [[Civil law (legal system)|civil-law jurisdictions]] such as France, which have an [[inquisitorial system]]. In contrast, [[Common law|common-law]] jurisdictions such as [[England and Wales|England]] and the [[United States]] have an [[adversarial system]] and lack a comparable official.<ref name="auto8">{{Harvnb|Jacob|1996|p=213}}</ref><ref name="auto4">{{Harvnb|Encyclopædia Britannica|2002}}</ref> 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."<ref>{{Harvnb|Jacob|1996|p=212}}</ref> This problem also affects common-law jurisdictions, although. itIt 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 judiciary|independence]] of the examining magistrate."<ref>{{Harvnb|Jacob|1996|pp=212–13}}</ref>
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."<ref>{{Harvnb|Fairchild|1993|p=128}}</ref> 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 [[Supreme Court of the United States|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.<ref>{{Harvnb|Thomas III|2008|p=203}}</ref>▼
 
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."<ref>{{Harvnb|Fairchild|1993|p=128}}</ref>
 
▲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."<ref>{{Harvnb|Fairchild|1993|p=128}}</ref> 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 [[Supreme Court of the United States|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;. byBy 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.<ref>{{Harvnb|Thomas III|2008|p=203}}</ref>
 
==By country==
Use of the examining magistrate has declined in Europe over time.<ref name="auto15">{{Harvnb|Gilliéron|2014|p=59}}</ref> [[Spain]], [[France]], [[Croatia]], the [[Netherlands]], [[Belgium]] and [[Greece]] are among the countries to retain the practice,. andBut 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.<ref>{{Harvnb|Gilliéron|2014|p name=59}}<"auto15"/ref><ref name="auto5">{{Harvnb|Fenyk|2000|p=42}}</ref> [[Switzerland]], [[Germany]], [[Portugal]], and [[Italy]] have all abolished the examining-magistrate system.<ref name="auto11">{{Harvnb|Gilliéron|2014|p=60}}</ref><ref>{{Harvnb|Fenyk|2000|p name=42}}<"auto5"/ref>
 
===France===
{{Main|Investigating judge (France)}}
====History====
[[File:Eric Halphen 20060627 Fnac 04.jpg|250px|thumb|right|[[Éric Halphen]], formerly a French investigative judge]]
In France, the investigative judge (''{{lang|fr|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.<ref>{{Harvnb|Encyclopædia Britannica|2002}}</ref> The sweeping powers traditionally entrusted to the ''{{lang|fr|juge d'instruction}}'' were so broad that [[Honoré de Balzac]] called the examining magistrate "the most powerful man in France" in the 19th century.<ref>{{Harvnb|Gilliéron|2014|pp=50, 319}}</ref> In a celebrated although exaggerated passage, Balzac wrote that "No human authority, neither [[list of French monarchs|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."<ref>{{Harvnb|Anderson|2011|pp=167–68}}</ref>▼
 
Later, however, the authority of the examining magistrates in France diminished in a series of reforms.<ref>{{Harvnb|Gilliéron|2014|pp=50, 319}}</ref> In 1985, French justice minister [[Robert Badinter]] proposed limiting the examining magistrate's role in making custody decisions; {{lang|fr|Badinter}}'s successor, [[Albin Chalandon]] made the same proposal two years later. In 1990, Justice Minister [[Pierre Arpaillange]] convened a Human Rights Commission (''{{lang|fr|Justice Penale et Droits de l'Homme}}''), led by the legal scholar [[Mireille Delmas-Marty]].<ref>{{Harvnb|Vogler|2005|p=148}}</ref> The commission concluded that France's criminal procedure code violated human rights standards,<ref>{{Harvnb|Vogler|2005|p=148}}</ref> noting that the examining magistrate combined investigative and judicial powers in a single person.<ref>{{Harvnb|Salas|2002|p=498}}</ref> 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" (''{{lang|fr|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.<ref>{{Harvnb|Vogler|2005|p=148}}</ref>
 
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 (France)|Socialist Party]] officials, the proposition appeared self-interested."<ref>{{Harvnb|Vogler|2005|p=148}}</ref> Less extensive reforms were adopted instead; legislation coming into effect in 1994 provided a [[right to counsel]] for persons in police custody (''{{lang|fr|garde à vue}}''), and also transferred the decision on bail and [[pretrial detention]] "to a team of magistrates not involved in 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 August 1993, when a new 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.<ref>{{Harvnb|Vogler|2005|p=149}}</ref>
 
Reforms resumed in 2000, with the enactment of the [[Élisabeth Guigou|Guigou Law]], following the issuance of the report of the Truche Commission and a proposal for revision of the French code of criminal procedure by [[Michèle-Laure Rassat]].<ref>{{Harvnb|Vogler|2005|p=149}}</ref> 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 (''{{lang|fr|juge des libertés et de la détention}}'') to make these determinations.<ref>{{Harvnb|Vogler|2005|p=149}}</ref>
 
Renewed calls for further reform to abolish or diminish the powers of the French examining magistrate intensified after a series of botched investigations,<ref>{{Harvnb|Lichfield|2002}}</ref> including what became known as the [[Outreau trial|Outreau scandal]]; in that case, more than a dozen people near [[Boulogne]] were wrongfully imprisoned (and about half [[wrongful conviction|wrongfully convicted]]) on [[false allegation of child sexual abuse|false charges of child abuse]] after a flawed investigation by an inexperienced ''juge''.<ref>{{Harvnb|Gilliéron|2014|p=60}}</ref><ref>{{Harvnb|Samuel|2009}}</ref> In 2009 and 2010, President [[Nicolas Sarkozy]] unsuccessfully attempted to abolish the post of examining magistrate as part of a broader package of legal reforms.<ref>{{Harvnb|Samuel|2009}}</ref><ref>{{Harvnb|Saltmarsh|2010}}</ref>
 
====Today====
Today, examining magistrates (''{{lang|fr|juges d'instruction}}'') are one of four types of French magistrates, the others being trial judges (''{{lang|fr|magistrats de siège}}''), [[ministère public (France)|public prosecutors]] (''{{lang|fr|magistrats debout}}''), and policymaking and administrative magistrates at the [[Ministry of Justice (France)|Ministry of Justice]].<ref>{{Harvnb|Anderson|2011|p=167}}</ref> Each ''{{lang|fr|juge d'instruction}}'' is appointed by the [[president of France]] upon the recommendation of the Ministry of Justice and serves renewable three-year terms.<ref>{{Harvnb|Encyclopædia Britannica|2002}}</ref> 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 ''{{lang|fr|[[Court of Cassation (France)|cour de cassation)]]}}''."<ref>{{Harvnb|Anderson|2011|p=168}}</ref> This arrangement has prompted criticism on the ground that the judiciary is not fully independent of the government.<ref>{{Harvnb|Anderson|2011|p=168}}</ref>▼
 
In 1996, political scientist Herbert Jacobs described the still-extensive powers and authority of the examining magistrate:
 
▲In France, the investigative[[investigating judge (''France)|investigating judge]] ({{lang|fr|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.<ref>{{Harvnb|Encyclopædia Britannica|2002}}<name="auto4"/ref> The sweeping powers traditionally entrusted to the ''{{lang|fr|juge d'instruction}}''them were so broad that [[Honoré de Balzac]] called the examininginvestigating magistratejudge "the most powerful man in France" in the 19th century.<ref name="auto17">{{Harvnb|Gilliéron|2014|pp=50, 319}}</ref> In a celebrated although exaggerated passage, Balzac wrote that "No human authority, neither [[list of French monarchs|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."<ref>{{Harvnb|Anderson|2011|pp=167–68}}</ref>
{{quote|The examining magistrate ... is responsible for assuring the quality of the investigation that underlies the prosecution, [and] enjoys sweeping powers. In serious cases the magistrate directs the investigation personally, ordering any potentially relevant witnesses to 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.<ref>{{Harvnb|Jacob|1996|p=213}}</ref>}}
 
Later, however, the authority of the investigating judges in France was diminished by a series of reforms,<ref name="auto17"/> initiated in 1985 by French justice minister [[Robert Badinter]].<ref name="auto1">{{Harvnb|Vogler|2005|p=148}}</ref><ref name="auto9">{{Harvnb|Vogler|2005|p=149}}</ref> and extending into the 2000s.<ref name="auto">{{Harvnb|Lichfield|2002}}</ref><ref name="auto10">{{Harvnb|Samuel|2009}}</ref><ref name="auto7">{{Harvnb|Saltmarsh|2010}}</ref>
Examining magistrates initiate an investigation upon an order of the ''{{lang|fr|procureur}}'' (public prosecutor), or upon the request of a private citizen.The ''{{lang|fr|juge d'instruction}}'' may issue [[search warrant]]s, order the seizure of necessary evidence, compel witnesses to appear and give evidence, and request [[expert testimony]]; at an investigative hearing, the ''{{lang|fr|judge}}'' may have witnesses confront each other or the accused.<ref>{{Harvnb|Encyclopædia Britannica|2002}}</ref> They may also authorize [[wiretap]]s.<ref>{{Harvnb|Saltmarsh|2010}}</ref> At a later plenary hearing in [[open court]], the investigative judge may issue an order of ''{{lang|fr|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 (France)|Court of Appeal]] for the pretrial hearing. The Court of Appeal decides whether to approve the ''{{lang|fr|juge}}''{{'}}s recommendation, and if it does the case is turned over to the [[Cour d'assises|Assize Court]].<ref>{{Harvnb|Encyclopædia Britannica|2002}}</ref> 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.<ref>{{Harvnb|Jacob|1996|pp=213–14}}</ref>
 
▲Today, examininginvestigating magistrates (''{{lang|fr|juges d'instruction}}'')judges are one of four types of French magistrates, the others being trial judges (''{{lang|fr|magistrats de siège}}''), [[ministère public (France)|public prosecutors]] (''{{lang|fr|magistrats debout}}''), and policymaking and administrative magistrates at the [[Ministry of Justice (France)|Ministry of Justice]].<ref>{{Harvnb|Anderson|2011|p=167}}</ref> Each ''{{lang|fr|jugeinvestigating d'instruction}}''judge is appointed by the [[president of France]] upon the recommendation of the Ministry of Justice and serves renewable three-year terms.<ref>{{Harvnb|Encyclopædia Britannica|2002}}</ref> Magistrates name="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 ''{{lang|fr|[[Court of Cassation (France)|cour de cassation)]]}}''.auto4"<ref>{{Harvnb|Anderson|2011|p=168}}</ref> This arrangement has prompted criticism on the ground that the judiciary is not fully independent of the government.<ref>{{Harvnb|Anderson|2011|p=168}}</ref>
In the year 2000, only about 7% of criminal investigations in France were directed by a ''{{lang|fr|juge d'instruction}}''.<ref>{{Harvnb|Fenyk|2000|p=42}}</ref> By 2010, that number had declined further to 4%, with police overseeing the rest.<ref>{{Harvnb|Saltmarsh|2010}}</ref> 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 individual attention to each was difficult.<ref>{{Harvnb|Lichfield|2002}}</ref> Nevertheless, examining magistrates "are seen as important, independent arbiters, examining the most sensitive and serious allegations."<ref>{{Harvnb|Saltmarsh|2010}}</ref> A few examining magistrates, such as [[Renaud Van Ruymbeke]], [[Thierry Jean-Pierre]], and [[Éric Halphen]] have become widely known for their investigations into [[corruption in France|corruption]] and [[list of political scandals in France|political scandals]]; such figures have investigated high-level government officials, including [[Prime Minister of France|prime ministers]], and made widely publicized visits to the headquarters of the major [[Political parties in France|French political parties]], reflecting their broad powers.<ref>{{Harvnb|Cole|2015}}</ref>
 
An investigating judge initiates an investigation upon an order of the Public Prosecutor ({{lang|fr|procureur}}) or upon the request of a private citizen. The [[investigating judge (France)|investigating judge]] may issue [[Letters rogatory]], order the seizure of necessary evidence, compel witnesses to appear and give evidence, and request [[expert testimony]] at an investigative hearing, the ''{{lang|fr|judge}}'' may have witnesses confront each other or the accused.<ref name="auto4"/>
In France, many magistrates belong to [[trade union]]s. About 60% belong to the [[Union syndicale des magistrats]] (USM), which is center-right, while about 30% belong to the leftist [[Syndicat de la Magistrature]] (SM). The unions represent the interests of magistrates, but by French law are barred from striking.<ref>Antoine Garapon & Harold Epineuse, "Judicial Independence in France" in ''Judicial Independence in Transition'' (ed. Anja Seibert-Fohr: Springer, 2012), p. 295.</ref>
 
===Spain===
In Spain, a ''{{lang|es|juez de instrucción}}'' is an examining judge,<ref name="auto3">{{Harvnb|Bachmaier|García|2010|p=31}}</ref> and a ''{{lang|es|juzgado de instrucción}}'' is the office of an examining judge.<ref>{{Harvnb|Truscott|García|1998|p=169}}</ref> 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 (''{{lang|es|[[Audiencia Nacional (Spain)|Audiencia Nacional]]}}'') or where another court has jurisdiction ''{{lang|la|[[ratione personae]]}}''."<ref>{{Harvnb|Bachmaier|García|2010|p name=31}}<"auto3"/ref> In addition to investigating crimes of all sorts, "the investigating judges are competent to try petty offense cases."<ref>{{Harvnb|Bachmaier|García|2010|p=32}}</ref>
 
Among the most famous Spanish investigating judges was [[Baltasar Garzón]], a polarizing figure known for investigating high-profile [[political corruption|corruption]] and [[human rights]] cases. Garzón was known for invoking the doctrine of [[universal jurisdiction]] to [[Indictment and arrest of Augusto Pinochet|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 [[White Terror (Spain)|atrocities committed during the Spanish Civil War]] (despite a [[Spanish 1977 Amnesty Law|1977 amnesty act]]) and [[Francoist Repression|human rights abuses]] committed during the [[Francoist Spain|dictatorship of Francisco Franco]]. Garzón was convicted of illegal wiretapping in 2012 and was suspended from the bench for 11 years.<ref>{{Harvnb|Minder|Simons|2012}}.</ref>
 
===Andorra===
The small European nation of [[Andorra]] has investigating magistrates; in 2018, for example, an investigating magistrate in the country issued indictments against 28 people, including former [[Venezuelan]] officials, on charges of [[money laundering]].<ref>Aritz Parra, [https://www.apnews.com/2277a6d32bbc4ba0812be8ccba970329 Andorra charges Venezuelan ex-officials for money laundering] {{Webarchive|url=https://web.archive.org/web/20180918012304/https://www.apnews.com/2277a6d32bbc4ba0812be8ccba970329 |date=2018-09-18 }}, Associated Press (September 13, 2018).</ref>
 
===Belgium and the Netherlands===
Both [[Belgium]] and the [[Netherlands]] retain the examining judge in some cases; examining judges investigate in 5% of cases in Belgium and 2% of cases in the Netherlands.<ref>{{Harvnb|Fenyk|2000|p name=42}}<"auto5"/ref>
 
In Belgium, criminal proceedings are usually initiated by the public prosecutor (''{{lang|nl|Procureur [[Monarchy of Belgium|des Konings]]}}'' or ''{{lang|fr|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 (''{{lang|nl|onderzoeksrechter}}'' or ''{{lang|fr|juge d'instruction}}''), who is an independent judge and member of the [[Tribunal of first instance (Belgium)|tribunal of first instance]] (''{{lang|nl|Rechtbank van eerste aanleg}}'' or ''{{lang|fr|Tribunal de première instance}}'').<ref>{{Harvnb|Châtel|1982|p=189}}</ref> The ''{{lang|nl|onderzoeksrechter}}'' has the power to question suspects, but not [[testimony|under oath]];, he or sheand may also question witnesses, issue search warrants, and issue [[pretrial detention|detention]] orders. The ''{{lang|nl|onderzoeksrechter}}'' generates a report on the outcome of the investigation and then refers it to the ''{{lang|nl|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.<ref>{{Harvnb|Châtel|1982|pp=189–90}}</ref> The role ofis unusual, as the ''{{lang|nl|onderzoeksrechter}}'' rolesimultaneously is unusual, because he or she is simultaneouslyserve a judge and an officer of the ''{{lang|fr|police judiciaire}}''.<ref>{{Harvnb|Pesquié|2002|p=106}}</ref>
 
In the Netherlands, the position of examining magistrate has existed since 1926, and the powers of the office were strengthened in 1999.<ref>{{Harvnb|Ballin|2012|pp=101–02}}</ref> [[Openbaar Ministerie|Dutch public prosecutors]] are charged with supervising criminal investigations and ensuring the "legitimacy, fairness and overall integrity" of the investigation and pretrial proceedings.<ref name="auto6">{{Harvnb|Ballin|2012|p=101}}</ref> In addition to their investigative role,<ref>{{Harvnb|Franken|2012|pp=38–40}}</ref> examining magistrate is also charged with making determinations as to the lawfulness of arrests and as to [[pretrial detention]].<ref>{{Harvnb|Franken|2012|p=36}}</ref> 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.<ref>{{Harvnb|Ballin|2012|p name=101}}<"auto6"/ref> For the most intrusive modes of investigation, such as wiretapping or other [[lawful interception|telecommunication intercepts]], public prosecutors must secure the approval of the examining magistrate.<ref>{{Harvnb|Ballin|2012|p name=101}}<"auto6"/ref><ref>{{Harvnb|Franken|2012|pp=37–38}}</ref>
 
===Latin America===
In [[Latin America]], the investigative (''{{lang|es|sumario}}'' or ''{{lang|es|instrucción}}'') phase of a criminal prosecution was historically overseen by an examining magistrate, preceding the trial (''{{lang|es|plenario}}'') phase.<ref name="auto13">{{Harvnb|Karst|Rosenn|1975|p=56}}</ref><ref>{{Harvnb|Mauricio|Pérez-Perdomo|2003|pp=72–73}}</ref> 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.<ref>{{Harvnb|Karst|Rosenn|1975|p name=56}}<"auto13"/ref> 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."<ref>{{Harvnb|Mauricio|Pérez-Perdomo|2003|p=73}}</ref> In Chile, for example, examining magistrates formerly had the "triple role" of overseeing the investigation, rendering a verdict, and passing a sentence.<ref name="auto16">{{Harvnb|Skaar|2011|p=127}}</ref>
 
By the end of the 20th century, most Latin American countries followed Germany in eliminating the examination phase.<ref>{{Harvnb|Merryman|Pérez-Perdomo|2007|p name=130}}<"auto14"/ref> In 1998, Venezuela enacted a legal reform that ended the secrecy of the ''sumario'' phase and bolstered the ability of accused persons to prepare a defense.<ref>{{Harvnb|Ungar|2002|p=59}}</ref> Beginning in 2002, Chile began to incorporate more adversarial aspects into its inquisitorial system, and this reform was implemented fully by 2005.<ref>{{Harvnb|Skaar|2011|p name=127}}<"auto16"/ref> The transition to a separation of judicial and investigative roles meant that public prosecutors (''fiscales'') obtained many responsibilities that were historically performed by investigative magistrates.<ref>{{Harvnb|Collins|2010|p=123}}</ref> However, investigations in past [[Human rights violations in Pinochet's Chile|human rights abuses in Chile]] have continued to use investigative magistrates at the first stage.<ref>{{Harvnb|Skaar|2011|p name=127}}<"auto16"/ref>
 
===Greece===
Line 66 ⟶ 59:
===Countries where the position was abolished===
====Italy====
Italy abolished the examining magistrate in 1989, as part of a broader overhaul of the [[Italian Code of Criminal Procedure]].<ref>{{Harvnb|Gilliéron|2014|p=127}}</ref> The reform transferred the investigative functions of the examining magistrate to public prosecutors,<ref>{{Harvnb|Salas|2002|p=495}}</ref> who in Italy are also considered judges.<ref name="auto18">{{Harvnb|Salas|2002|p=498}}</ref> 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.<ref name="auto2">{{Harvnb|Maffei|Merzagora Betsos|2010|p=173}}</ref> 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.<ref>{{Harvnb|Maffei|Merzagora Betsos|2010|pname=173}}<"auto2"/ref>
 
====Switzerland====
[[File:Carla Del Ponte.jpg|200px|thumb|[[Carla Del Ponte]]]]
Before 2011 Switzerland had four different models of inquiry: examining magistrate models I and II (''{{lang|de|Untersuchungsrichtermodell}}'') and public prosecutor models I and II (''{{lang|de|Staatsanwaltschaftsmodell}}'').<ref>{{Harvnb|Gilliéron|2014|p=57}}</ref> Different [[cantons of Switzerland]] used different models.<ref>{{Harvnb|Gilliéron|2014|pp=57–59}}</ref> Under "examining magistrate model I" an independent examining magistrate directed the police investigation directly, and the public prosecutor was only a party in the case.<ref>{{Harvnb|Gilliéron|2014|pp=57–58}}</ref> 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."<ref>{{Harvnb|Gilliéron|2014|p=58}}</ref> 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."<ref>{{Harvnb|Gilliéron|2014|pp=58–59}}</ref> 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 and examination, making the decision of whether or not to charge, and prosecuting the case.<ref>{{Harvnb|Gilliéron|2014|p name=59}}<"auto15"/ref>
 
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.<ref>{{Harvnb|Gilliéron|2014|p name=59}}<"auto15"/ref>
 
One prominent Swiss investigative magistrate was [[Carla Del Ponte]], who became prominent for her investigations into [[Sicilian Mafia]] crime in Switzerland. Del Ponte was later appointed public prosecutor and then federal attorney general of Switzerland, before becoming chief prosecutor of the [[International Criminal Tribunal for the former Yugoslavia]] and the [[International Criminal Tribunal for Rwanda]].<ref>{{Harvnb|Del Ponte|2009}}</ref>
Line 79 ⟶ 72:
[[Poland]] historically had examining magistrates; Polish examining magistrate [[Jan Sehn]] investigated the Nazi atrocities at [[Auschwitz concentration camp|Auschwitz]] in preparation for the [[Auschwitz trials]].<ref>{{Harvnb|Langbein|2005|pp=8, 314}}</ref> However, in 1949, the Polish judiciary was restructured along [[Polish People's Republic|Soviet lines]], and the position of investigating magistrate was eliminated.<ref>{{Harvnb|Paczkowski|2010|p=231}}</ref>
 
[[West Germany]] abolished the examining magistrate at the end of 1974.<ref>{{Harvnb|Gilliéron|2014|p=319}}</ref><ref>{{Harvnb|Fenyk|2000|p name=42}}<"auto5"/ref> Portugal abolished the examining magistrate in 1987.<ref>{{Harvnb|Fenyk|2000|p name=42}}<"auto5"/ref>
 
== In popular culture ==
The 1969 film [[Z (1969 film)|''Z'']] stars an examining magistrate based on [[Christos Sartzetakis]].<ref>{{Cite book|url=https://books.google.com/books?id=55qlWjbs14sC&pg=PA1145|title=The New York Times Guide to the Best 1,000 Movies Ever Made|last=|first=|edition=Revised and updated|publisher=Macmillan|year=2004|isbn=9780312326111|location=|pages=145|language=en}}</ref>
 
==See also==
Line 94 ⟶ 87:
'''Books'''
{{refbegin}}
* {{cite book|last=Anderson|first=Malcolm|title=In Thrall to Political Change: Police and Gendarmerie in France|url=https://books.google.com/books?id=CYqKByxmueEC|publisher=Oxford University Press|year=2011|ref=harv|isbn=9780199693641|oclc=906084292}}
* {{cite book|last1=Bachmaier|first1=Lorena|last2=García|first2=Antonio del Moral|title=Criminal Law in Spain|publisher=Wolters Kluwer|url=https://books.google.com/books?id=ncYScNZiZKgC|year=2010|ref=harv|isbn=9789041132956|oclc=963549186}}{{Dead link|date=March 2024 |bot=InternetArchiveBot |fix-attempted=yes }}
* {{cite book|title=Anticipative Criminal Investigation: Theory and Counterterrorism Practice in the Netherlands and the United States|last=Ballin|first=Marianne F.H. Hirsch|url=https://books.google.com/books?id=CGExJeGdVF0C|publisher=[[T.M.C. Asser Press]]|year=2012|ref=harv|isbn=9789067049481|oclc=876005886}}
* {{cite book|last=Châtel|first=Marc|title=Human Rights and Belgian Criminal Procedure at Pre-Trial and Trial Level|url=https://books.google.com/books?id=1mOt32sMyvYC|series=Human Rights in Criminal Procedure: A Comparative Study|publisher=[[Martinus Nijhoff Publishers]]|year=1982|editor=John A. Andrews|ref=harv|oclc=848268259|isbn=9024725526}}
* {{cite book|last=Cole|first=Alistair|title=French Politics and Society|url=https://books.google.com/books?id=vcMbCAAAQBAJ|edition=2d|publisher=Routledge|year=2015|ref=harv|isbn=9781317376958|oclc=984993770}}
* {{cite book|last=Collins|first=Cath|year=2010|title=Post-transitional Justice: Human Rights Trials in Chile and El Salvador|publisher=Penn State University Press|ref=harv}}
* {{cite book|last1=Dammer|first1=Harry R.|last2=Albanese|first2=Jay S.|title=Comparative Criminal Justice Systems|url=https://books.google.com/books?id=8qNfHXvJx9gC|edition=4th|publisher=Cengage Learning|year=2011|ref=harv|isbn=9780495812708|oclc=741932781}}
* {{cite book|last=Del Ponte|first=Carla|url=https://books.google.com/books?id=EHkbatQ3FGIC|title=Madame Prosecutor: Confrontations with Humanity's Worst Criminals and the Culture of Impunity|publisher=Other Press|edition=English-language|date=2009|ref=harv|isbn=9781590515372}}
* {{cite book|last=Fenyk|first=Jaroslav|title="Reflections on Development of the Authorities of Public Prosecution and on Importance of Some Principles of Criminal Procedure" in the European Democracies, in What Public Prosecution in Europe in the 21st Century|url=https://books.google.com/books?id=-Vyd37de0joC|publisher=Proceedings of the Pan-European Conference, Strasbourg, 22–24 May 2000, [[Council of Europe]]|yeardate=November 2000|ref=harv|isbn=9287144729|oclc=604386710}}
* {{cite book|last=Fairchild|first=Erika|title=Comparative Criminal Justice Systems|url=https://books.google.com/books?id=am1HAAAAMAAJ|publisher=Wadsworth|year=1993|ref=harv|isbn=9780534129965|oclc=26400250}}
* {{cite book|last=Franken|first=Stijn|title="The Judge in the Pre-Trial Investigation" in The Reform of the Dutch Code of Criminal Procedure in Comparative Perspective|url=https://books.google.com/books?id=mWEyAQAAQBAJ|publisher= [[Martinus Nijhoff Publishers]]|year=2012|editor1=M.S. Groenhuijsen|editor2=Tijs Kooijmans|ref=harv|isbn=9789004232594|oclc=812174481}}
* {{cite book|last=Gilliéron|first=Gwladys|title=Public Prosecutors in the United States and Europe: A Comparative Analysis with Special Focus on Switzerland, France, and Germany|publisher=Springer International|url=https://books.google.com/books?id=DjtdAwAAQBAJ|year=2014|ref=harv|isbn=9783319045030|oclc=918792441}}
* {{cite book|last=Jacob|first=Herbert|title=Courts, Law, and Politics in Comparative Perspective|publisher=Yale University Press|url=https://books.google.com/books?id=AgwTVv9gUJ4C|year=1996|ref=harv|isbn=9780300063790|oclc=318372322}}
* {{cite book|last1=Karst|first1=Kenneth L.|last2=Rosenn|first2=Keith S.|title=Law and Development in Latin America: A Case Book|publisher=University of California Press|url=https://booksarchive.google.comorg/books?iddetails/lawdevelopmentin0000kars|url-access=setUedgDQFUCregistration|year=1975|ref=harv|isbn=9780520029552|oclc=848182780}}
* {{cite book|last1=Langbein|first1=Hermann|title=People in Auschwitz|publisher=University of North Carolina Press|url=https://books.google.com/books?id=DzWPL6hjk9MC|year=2005|translator=Harry Zohn|ref=harv|isbn=9781469628370|oclc=919104117|access-date=2017-12-15|archive-date=2023-01-14|archive-url=https://web.archive.org/web/20230114053809/https://books.google.com/books?id=DzWPL6hjk9MC|url-status=live}}
* {{cite book|last1=Maffei|first1=Stefano|last2=Merzagora Betsos|first2=Isabella|year=2010|title="Italy" in Crime and Punishment Around the World|publisher=ABC-CLIO|volume=4 (Europe)|editor=Graeme R. Newman|url=https://books.google.com/books?id=2uK6bR9byVIC|ref=harv|isbn=9780313351334|oclc=878812767}}
* {{cite book|last1=Merryman|first1=John Henry|last2=Pérez-Perdomo|first2=Rogelio|title=The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America|publisher=Stanford University Press|url=https://books.google.com/books?id=Z9B8GaU2BqoC|year=2007|edition=3d|ref=harv|isbn=9781503606814|oclc=1029071232}}
* {{cite book|last1=Mauricio|first1=Duce|last2=Pérez-Perdomo|first2=Rogelio|title="Citizen Security and Reform of the Criminal Justice System in Latin America" in Crime and Violence in Latin America: Citizen Security, Democracy, and the State|editor1=H. Hugo Frühling|editor2=Joseph S. Tulchin|editor3=Heather Golding|url=https://books.google.com/books?id=H7Ge7kkOCIkC|publisher=Woodrow Wilson Center Press/Johns Hopkins University Press|year=2003|ref=harv|isbn=9780801873836|oclc=981363951}}
* {{cite book|last=Pesquié|first=Brigitte|title="The Belgian System" in European Criminal Procedures|editor1=Mireille Delmas-Marty|editor2=J.R. Spencer|publisher=Cambridge University Press|url=https://books.google.com/books?id=epTsD3_6DVMC|year=2002|ref=harv|isbn=9780521678483|oclc=850972090}}
* {{cite book|last=Paczkowski|first=Andrzej|title=Spring Will Be Ours: Poland and the Poles from Occupation to Freedom|publisher=Pennsylvania State University Press|url=https://booksarchive.google.comorg/details/books?idspringwillbeours0000pacz|url-access=WoKQWem2yl4Cregistration|translator=Jane Cave|year=2010|ref=harv|isbn=9780271023083|oclc=59286551}}
* {{cite book|last=Salas|first=Denis |title="The Role of the Judge" in European Criminal Procedures|editor1=Mireille Delmas-Marty|editor2=J.R. Spencer|publisher=Cambridge University Press|url=https://books.google.com/books?id=epTsD3_6DVMC|year=2002|ref=harv|isbn=9780521678483|oclc=850972090}}
* {{cite book|last=Skaar|first=Elin|title=Judicial Independence and Human Rights in Latin America: Violations, Politics, and Prosecution|publisher=Palgrave Macmillan|year=2011|ref=harv}}
* {{cite book|last=Terrill|first=Richard J.|title=World Criminal Justice Systems: A Comparative Survey|url=https://books.google.com/books?id=xZ3hCgAAQBAJ|publisher=Routledge|year=2016|edition=9th|ref=harv|isbn=9781138940864|oclc=952931856}}
* {{cite book|last=Thomas III|first=George C.|title=The Supreme Court on Trial: How the American Justice System Sacrifices Innocent Defendants|url=https://books.google.com/books?id=PLVUGuOe9oAC|publisher=University of Michigan Press|year=2008|ref=harv|isbn=9780472034833|oclc=741563460}}
* {{cite book|last1=Truscott|first1=Sandra|last2=García|first2=Maria|title=Dictionary of Contemporary Spain|url=https://books.google.com/books?id=LMp8RsxuU0cC|publisher=Routledge|year=1998|ref=harv|isbn=9781136595028|oclc=962061312}}
* {{cite book|last=Ungar|first=Mark|title=Elusive Reform: Democracy and the Rule of Law in Latin America|date=2002|publisher=Lynne Rienner Publishers|ref=harv}}
* {{cite book|last1=Veremēs|first1=Thanos|last2=Dragoumēs|first2=Markos|title="Justice, Administration of" in Historical Dictionary of Greece|publisher=Scarecrow Press|year=1995|ref=harv|isbn=9780810828889|oclc=468714464}}
* {{cite book|last=Vogler|first=Richard|title=A World View of Criminal Justice|url=https://books.google.com/books?id=P4tBDgAAQBAJ|publisher=Ashgate Publishing|edition=Routledge 2016|year=2005|ref=harv|isbn=9780754624677|oclc=61425669}}
{{refend}}
'''Other works'''
{{refbegin}}
* {{cite bookencyclopedia|title=Juge d'instruction|url=https://www.britannica.com/topic/juge-dinstruction|encyclopedia=Encyclopædia Britannica|date=April 26, 2002|ref={{harvid|Encyclopædia Britannica|2002}}|access-date=April 12, 2017|archive-date=April 13, 2017|archive-url=https://web.archive.org/web/20170413081046/https://www.britannica.com/topic/juge-dinstruction|url-status=live}}
* {{cite news|last=Samuel|first=Henry|title=Nicolas Sarkozy to abolish controversial French magistrate|url=https://www.telegraph.co.uk/news/worldnews/europe/france/4160680/Nicolas-Sarkozy-to-abolish-controversial-French-magistrate.html|work=The Telegraph|date=January 7, 2009|ref=harv|issn=2059-7487|oclc=49632006|archive-url=https://web.archive.org/web/20170413101054/https://www.telegraph.co.uk/news/worldnews/europe/france/4160680/Nicolas-Sarkozy-to-abolish-controversial-French-magistrate.html|archive-date=April 13, 2017}}
* {{cite news|last=Saltmarsh|first=Matthew|title=Sarkozy's Legal Reforms Run Into Obstacles|url=https://www.nytimes.com/2010/07/06/world/europe/06paris.html|work=The New York Times|date=July 5, 2010|ref=harv|issn=1553-8095|oclc=1645522|archive-url=https://wwwweb.webcitationarchive.org/72114qDfJ?url=web/20180829003446/https://www.nytimes.com/2010/07/06/world/europe/06paris.html|archive-date=2018-08-2829|access-date=2017-08-27|url-status=live}}
* {{cite news|last=Lichfield|first=John|title=Why the French are growing envious of Britain's justice system|url=https://www.independent.co.uk/voices/commentators/john-lichfield-why-the-french-are-growing-envious-of-britains-justice-system-654087.html|work=The Independent|date=March 15, 2002|ref=harv|issn=0951-9467|oclc=185201487|archiveaccess-urldate=August 27, 2017|archive-date=May 23, 2017|archive-url=https://web.archive.org/web/20170523204146/http://www.independent.co.uk/voices/commentators/john-lichfield-why-the-french-are-growing-envious-of-britains-justice-system-654087.html|url-status=live}}
* {{cite news|last1=Minder|first1=Raphael|first2=Marlise|last2=Simons|title=Prominent Rights Judge Is Convicted in Spain|url=https://www.nytimes.com/2012/02/10/world/europe/baltasar-garzon-prominent-rights-judge-convicted-in-spain.htm|work=The New York Times|date=February 9, 2012|ref=harv|issn=1553-8095|oclc=1645522|archive-url=|archive-date=}}
* {{cite news|last=Kitsantonis|first=Niki|title=Greek Police Arrest Suspect in Letter Bomb Attacks|url=https://www.nytimes.com/2017/10/28/world/europe/greece-letter-bomb-suspect.html|work=The New York Times|date=October 28, 2017|ref=harv|issn=1553-8095|oclc=1645522|archiveaccess-urldate=December 2, 2017|archive-date=December 3, 2017|archive-url=https://web.archive.org/web/20171203082826/https://www.nytimes.com/2017/10/28/world/europe/greece-letter-bomb-suspect.html|url-status=live}}
{{refend}}
[[Category:Judges]]
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