Examining magistrate: Difference between revisions

{{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>}}

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. 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>

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. But 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>

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}}<name="auto4"/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 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>

Later, however, the authority of the examining magistrates in France was diminished by a series of reforms.<ref>{{Harvnb|Gilliéron|2014|pp name=50, 319}}<"auto17"/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 name="auto1">{{Harvnb|Vogler|2005|p=148}}</ref> The commission concluded that France's criminal procedure code violated human rights standards,<ref>{{Harvnb|Vogler|2005|p name=148}}<"auto1"/ref> noting that the examining magistrate combined investigative and judicial powers in a single person.<ref name="auto18">{{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 name=148}}<"auto1"/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 name=148}}<"auto1"/ref> Less extensive reforms were adopted instead; legislation that became effective 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. 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 name="auto9">{{Harvnb|Vogler|2005|p=149}}</ref>

Reforms resumed in 2000, with the enactment of the [[Élisabeth Guigou|Guigou Law]]. This followed the report of the Truche Commission and a proposal to revise the French code of criminal procedure by [[Michèle-Laure Rassat]].<ref>{{Harvnb|Vogler|2005|p name=149}}<"auto9"/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 name=149}}<"auto9"/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 name="auto">{{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 name=60}}<"auto11"/ref><ref name="auto10">{{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}}< name="auto10"/ref><ref name="auto7">{{Harvnb|Saltmarsh|2010}}</ref>

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}}<name="auto4"/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 name="auto12">{{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 name=168}}<"auto12"/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 name=213}}<"auto8"/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 [[Letters rogatory]]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}}<name="auto4"/ref> They may also authorize [[wiretap]]s.<ref>{{Harvnb|Saltmarsh|2010}}< name="auto7"/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}}<name="auto4"/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>

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 name=42}}<"auto5"/ref> By 2010, that number had declined further to 4%, with police overseeing the rest.<ref>{{Harvnb|Saltmarsh|2010}}< name="auto7"/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}}< name="auto"/ref> But, examining magistrates "are seen as important, independent arbiters, examining the most sensitive and serious allegations."<ref>{{Harvnb|Saltmarsh|2010}}< name="auto7"/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>

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>

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 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>

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>

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>{{Harvnb|Salas|2002|p name=498}}<"auto18"/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>

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>

[[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>