In an
inquisitorial system
An inquisitorial system is a legal system in which the court, or a part of the court, is actively involved in investigating the facts of the case. This is distinct from an adversarial system, in which the role of the court is primarily that of an ...
of law, the examining magistrate (also called investigating magistrate, inquisitorial magistrate, or investigating judge) is a
judge who carries out pre-
trial
In law, a trial is a coming together of parties to a dispute, to present information (in the form of evidence) in a tribunal, a formal setting with the authority to adjudicate claims or disputes. One form of tribunal is a court. The tribunal ...
investigations into allegations of
crime
In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definitions of", in Ca ...
and in some cases makes a recommendation for
prosecution
A prosecutor is a legal representative of the prosecution in states with either the common law adversarial system or the Civil law (legal system), civil law inquisitorial system. The prosecution is the legal party responsible for presenting the ...
. The exact role and standing of examining magistrates varies by
jurisdiction
Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels.
J ...
. Common duties and powers of the examining magistrate include overseeing ongoing
criminal investigation
Criminal investigation is an applied science that involves the study of facts that are then used to inform criminal trials. A complete criminal investigation can include searching, interviews, interrogations, evidence collection and preservat ...
s, issuing
search warrant
A search warrant is a court order that a magistrate or judge issues to authorize law enforcement officers to conduct a search of a person, location, or vehicle for evidence of a crime and to confiscate any evidence they find. In most countries, ...
s, authorizing
wiretap
Telephone tapping (also wire tapping or wiretapping in American English) is the monitoring of telephone and Internet-based conversations by a third party, often by covert means. The wire tap received its name because, historically, the monitorin ...
s, making decisions on
pretrial detention
Remand, also known as pre-trial detention, preventive detention, or provisional detention, is the process of detaining a person until their trial after they have been arrested and charged with an offence. A person who is on remand is held i ...
, interrogating the accused person, questioning witnesses, examining evidence, as well as compiling a dossier of evidence in preparation for trial.
Examining magistrates have an important role in the
French judiciary
In France, career judges are considered civil servants exercising one of the sovereign powers of the state, so French citizens are eligible for judgeship, but not citizens of the other EU countries. France's independent court system enjoys speci ...
. They are also a feature of the Spanish, Dutch, Belgian and Greek
criminal justice system
Criminal justice is the delivery of justice to those who have been accused of committing crimes. The criminal justice system is a series of government agencies and institutions. Goals include the rehabilitation of offenders, preventing other ...
s, although the extent of the examining magistrate's role has generally diminished over time. Since 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:
Comparison to common-law systems
The role of the examining magistrate is important in
civil-law jurisdictions such as France, which have an
inquisitorial system
An inquisitorial system is a legal system in which the court, or a part of the court, is actively involved in investigating the facts of the case. This is distinct from an adversarial system, in which the role of the court is primarily that of an ...
. In contrast,
common-law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
jurisdictions such as
England
England is a country that is part of the United Kingdom. It shares land borders with Wales to its west and Scotland to its north. The Irish Sea lies northwest and the Celtic Sea to the southwest. It is separated from continental Europe b ...
and the
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territori ...
have an
adversarial system
The adversarial system or adversary system is a legal system used in the common law countries where two advocates represent their parties' case or position before an impartial person or group of people, usually a judge or jury, who attempt to det ...
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. 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
Independence is a condition of a person, nation, country, or state in which residents and population, or some portion thereof, exercise self-government, and usually sovereignty, over its territory. The opposite of independence is the statu ...
of the examining magistrate."
The examination phase has been described as "the most controversial aspect of criminal procedure" in civil-law jurisdictions because of "
e 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
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
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.
By country
Use of the examining magistrate has declined in Europe over time.
Spain
, image_flag = Bandera de España.svg
, image_coat = Escudo de España (mazonado).svg
, national_motto = ''Plus ultra'' (Latin)(English: "Further Beyond")
, national_anthem = (English: "Royal March")
, i ...
,
France
France (), officially the French Republic ( ), is a country primarily located in Western Europe. It also comprises of overseas regions and territories in the Americas and the Atlantic, Pacific and Indian Oceans. Its metropolitan area ...
,
Croatia
, image_flag = Flag of Croatia.svg
, image_coat = Coat of arms of Croatia.svg
, anthem = "Lijepa naša domovino"("Our Beautiful Homeland")
, image_map =
, map_caption =
, capit ...
, the
Netherlands
)
, anthem = ( en, "William of Nassau")
, image_map =
, map_caption =
, subdivision_type = Sovereign state
, subdivision_name = Kingdom of the Netherlands
, established_title = Before independence
, established_date = Spanish Netherl ...
,
Belgium
Belgium, ; french: Belgique ; german: Belgien officially the Kingdom of Belgium, is a country in Northwestern Europe. The country is bordered by the Netherlands to the north, Germany to the east, Luxembourg to the southeast, France to th ...
and
Greece
Greece,, or , romanized: ', officially the Hellenic Republic, is a country in Southeast Europe. It is situated on the southern tip of the Balkans, and is located at the crossroads of Europe, Asia, and Africa. Greece shares land borders ...
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.
Switzerland,
Germany
Germany,, officially the Federal Republic of Germany, is a country in Central Europe. It is the second most populous country in Europe after Russia, and the most populous member state of the European Union. Germany is situated betwe ...
,
Portugal
Portugal, officially the Portuguese Republic ( pt, República Portuguesa, links=yes ), is a country whose mainland is located on the Iberian Peninsula of Southwestern Europe, and whose territory also includes the Atlantic archipelagos of ...
, and
Italy
Italy ( it, Italia ), officially the Italian Republic, ) or the Republic of Italy, is a country in Southern Europe. It is located in the middle of the Mediterranean Sea, and its territory largely coincides with the homonymous geographical ...
have all abolished the examining-magistrate system.
France
History
![Eric Halphen 20060627 Fnac 04](https://upload.wikimedia.org/wikipedia/commons/c/cc/Eric_Halphen_20060627_Fnac_04.jpg)
In France, the investigative judge (', "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 ' were so broad that
Honoré de Balzac
Honoré de Balzac ( , more commonly , ; born Honoré Balzac;Jean-Louis Dega, La vie prodigieuse de Bernard-François Balssa, père d'Honoré de Balzac : Aux sources historiques de La Comédie humaine, Rodez, Subervie, 1998, 665 p. 20 May 179 ...
called the examining magistrate "the most powerful man in France" in the 19th century.
In a celebrated although exaggerated passage, 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 was diminished by a series of reforms.
In 1985, French justice minister
Robert Badinter
Robert Badinter (; born 30 March 1928) is a French lawyer, politician and author who enacted the abolition of the death penalty in France in 1981, while serving as Minister of Justice under François Mitterrand. He has also served in high-lev ...
proposed limiting the examining magistrate's role in making custody decisions; 's successor,
Albin Chalandon
Albin Chalandon (; 11 June 1920 – 29 July 2020) was a French politician and minister.
Between 1968 and 1972, he was Minister of Public Works. And from 1986 until 1988, he was Minister of Justice.
Between 1967 and 1968, he was a member of the ...
made the same proposal two years later. In 1990, Justice Minister
Pierre Arpaillange convened a Human Rights Commission ('), led by the legal scholar
Mireille Delmas-Marty
Mireille Delmas-Marty (10 May 1941 – 12 February 2022) was a French jurist, honorary professor at the Collège de France, and a member of the Academy of Moral and Political Sciences. She was a member of numerous legislative and constitutiona ...
.
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" (') 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
Socialist Party is the name of many different political parties around the world. All of these parties claim to uphold some form of socialism, though they may have very different interpretations of what "socialism" means. Statistically, most of t ...
officials, the proposition appeared self-interested."
Less extensive reforms were adopted instead; legislation that became effective in 1994 provided a
right to counsel
In criminal law, the right to counsel means a defendant has a legal right to have the assistance of counsel (i.e., lawyers) and, if the defendant cannot afford a lawyer, requires that the government appoint one or pay the defendant's legal exp ...
for persons in police custody ('), and also transferred the decision on bail and
pretrial detention
Remand, also known as pre-trial detention, preventive detention, or provisional detention, is the process of detaining a person until their trial after they have been arrested and charged with an offence. A person who is on remand is held i ...
"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
Pierre Méhaignerie (born 4 May 1939) is a French politician. He is a former deputy of the Ille-et-Vilaine's 5th constituency and the former mayor of Vitré (re-elected in March 2008).
He was elected in 1973 to the French parliament
...
, 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.
Reforms resumed in 2000, with the enactment of the
Guigou Law Guigou is a surname, and may refer to:
* Élisabeth Guigou (born 1946), French politician
* Gianni Guigou (born 1975), Uruguayan footballer
* Michaël Guigou (born 1982), French handball player
* Paul Guigou (1834–1871), French painter
Guigou may ...
. This followed the report of the Truche Commission and a proposal to revise the French code of criminal procedure 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 (') to make these determinations.
Renewed calls for further 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
A miscarriage of justice occurs when a grossly unfair outcome occurs in a criminal or civil proceeding, such as the conviction and punishment of a person for a crime they did not commit. Miscarriages are also known as wrongful convictions. Inno ...
) 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 post of examining magistrate as part of a broader package of legal reforms.
Today
Today, examining magistrates (') are one of four types of French magistrates, the others being trial judges ('),
public prosecutors ('), and policymaking and administrative magistrates at the
Ministry of Justice A Ministry of Justice is a common type of government department that serves as a justice ministry.
Lists of current ministries of justice
Named "Ministry"
* Ministry of Justice (Abkhazia)
* Ministry of Justice (Afghanistan)
* Ministry of Just ...
. Each ' is appointed by the
president of France
The president of France, officially the president of the French Republic (french: Président de la République française), is the executive head of state of France, and the commander-in-chief of the French Armed Forces. As the presidency i ...
upon the recommendation of the Ministry of Justice and serves 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 '."
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:
Examining magistrates initiate an investigation upon an order of the ' (public prosecutor), or upon the request of a private citizen. The ' may issue
Letters rogatory {{Short description, Formal request by a court to a foreign court for judicial assistance
Letters rogatory or letters of request are a formal request from a court to a foreign court for some type of judicial assistance. The most common remedies soug ...
s, order the seizure of necessary evidence, compel witnesses to appear and give evidence, and request
expert testimony
An expert witness, particularly in common law countries such as the United Kingdom, Australia, and the United States, is a person whose opinion by virtue of education, training, certification, skills or experience, is accepted by the judge as ...
; at an investigative hearing, the ' may have witnesses confront each other or the accused.
They may also authorize
wiretap
Telephone tapping (also wire tapping or wiretapping in American English) is the monitoring of telephone and Internet-based conversations by a third party, often by covert means. The wire tap received its name because, historically, the monitorin ...
s.
At a later plenary hearing in
open court, the investigative judge may issue an order of ' ("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 's recommendation and, if it does, the case is turned over to the
Assize Court
The courts of assize, or assizes (), were periodic courts held around England and Wales until 1972, when together with the quarter sessions they were abolished by the Courts Act 1971 and replaced by a single permanent Crown Court. The assizes e ...
.
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 '.
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 individual attention to each was difficult.
But, examining magistrates "are seen as important, independent arbiters, examining the most sensitive and serious allegations."
A few examining magistrates, such as
Renaud Van Ruymbeke
Renaud van Ruymbeke (born 19 August 1952) is an investigative magistrate, well known for specializing in political and financial corruption cases. He investigated the French-Taiwan Frigates Affair, which was related to the Clearstream, and the ...
,
Thierry Jean-Pierre
Thierry Jean-Pierre (1955–2005) was a French judge and Member of the European Parliament
A Member of the European Parliament (MEP) is a person who has been elected to serve as a popular representative in the European Parliament.
When ...
, and
Éric Halphen
Éric Halphen (born 10 October 1959) is a French judge best known as the investigating magistrate in the Parisian low-cost housing scandals of the 1990s.
Timeline
* 1959. (5 October) Born at Clichy-la-Garenne ( Hauts-de-Seine). Later receiv ...
have become widely known for their investigations into
corruption and
political scandals
In politics, a political scandal is an action or event regarded as morally or legally wrong and causing general public outrage. Politicians, government officials, party officials and lobbyists can be accused of various illegal, corrupt, unethic ...
; such figures have investigated high-level government officials, including
prime ministers
A prime minister, premier or chief of cabinet is the head of the cabinet and the leader of the ministers in the executive branch of government, often in a parliamentary or semi-presidential system. Under those systems, a prime minister is no ...
, and made widely publicized visits to the headquarters of the major
French political parties, reflecting their broad powers.
In France, many magistrates belong to
trade union
A trade union (labor union in American English), often simply referred to as a union, is an organization of workers intent on "maintaining or improving the conditions of their employment", ch. I such as attaining better wages and benefits ...
s. About 60% belong to the
Union syndicale des magistrats
The Union syndicale des magistrats, commonly abbreviated as USM, is the French largest (and majoritarian) magistrates trade union
A trade union (labor union in American English), often simply referred to as a union, is an organization of wo ...
(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 they are barred from striking.
Spain
In Spain, a ' is an examining judge,
and a ' 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 (') or where another court has jurisdiction '."
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
Baltasar Garzón Real (; born 26 October 1955) is a former Spanish judge. Garzón formerly served on Spain's central criminal court, the ''Audiencia Nacional'', and was the examining magistrate of the ''Juzgado Central de Instrucción No. 5'', ...
, a polarizing figure known for investigating high-profile
corruption and
human rights
Human rights are moral principles or normsJames Nickel, with assistance from Thomas Pogge, M.B.E. Smith, and Leif Wenar, 13 December 2013, Stanford Encyclopedia of PhilosophyHuman Rights Retrieved 14 August 2014 for certain standards of hu ...
cases. Garzón was known for invoking the doctrine of
universal jurisdiction
Universal jurisdiction is a legal principle that allows states or international organizations to claim criminal jurisdiction over an accused person regardless of where the alleged crime was committed, and regardless of the accused's nationality, ...
to
issue an international arrest warrant for Chilean dictator
Augusto Pinochet
Augusto José Ramón Pinochet Ugarte (, , , ; 25 November 1915 – 10 December 2006) was a Chilean general who ruled Chile from 1973 to 1990, first as the leader of the Military Junta of Chile from 1973 to 1981, being declared President of ...
, 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
Human rights are moral principles or normsJames Nickel, with assistance from Thomas Pogge, M.B.E. Smith, and Leif Wenar, 13 December 2013, Stanford Encyclopedia of PhilosophyHuman Rights Retrieved 14 August 2014 for certain standards of hu ...
committed during the
dictatorship of Francisco Franco. Garzón was convicted of illegal wiretapping in 2012 and was suspended from the bench for 11 years.
Andorra
The small European nation of
Andorra
, image_flag = Flag of Andorra.svg
, image_coat = Coat of arms of Andorra.svg
, symbol_type = Coat of arms
, national_motto = la, Virtus Unita Fortior, label=none (Latin)"United virtue is stro ...
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.
Belgium and the Netherlands
Both
Belgium
Belgium, ; french: Belgique ; german: Belgien officially the Kingdom of Belgium, is a country in Northwestern Europe. The country is bordered by the Netherlands to the north, Germany to the east, Luxembourg to the southeast, France to th ...
and the
Netherlands
)
, anthem = ( en, "William of Nassau")
, image_map =
, map_caption =
, subdivision_type = Sovereign state
, subdivision_name = Kingdom of the Netherlands
, established_title = Before independence
, established_date = Spanish Netherl ...
retain the examining judge in some cases; examining judges investigate in 5% of cases in Belgium and 2% of cases in the Netherlands.
In Belgium, criminal proceedings are usually initiated by the public prosecutor (' or '), 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 (' or '), who is an independent judge and member of the
tribunal of first instance (' or '). The ' 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 ' generates a report on the outcome of the investigation and then refers it to the ', 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 ' role is unusual, because he or she is simultaneously a judge and an officer of the '.
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
Remand, also known as pre-trial detention, preventive detention, or provisional detention, is the process of detaining a person until their trial after they have been arrested and charged with an offence. A person who is on remand is held i ...
. 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.
Latin America
In
Latin America
Latin America or
* french: Amérique Latine, link=no
* ht, Amerik Latin, link=no
* pt, América Latina, link=no, name=a, sometimes referred to as LatAm is a large cultural region in the Americas where Romance languages — languages derived f ...
, the investigative (' or ') phase of a criminal prosecution was historically overseen by an examining magistrate, preceding the trial (') 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
Chile, officially the Republic of Chile, is a country in the western part of South America. It is the southernmost country in the world, and the closest to Antarctica, occupying a long and narrow strip of land between the Andes to the east a ...
,
Paraguay
Paraguay (; ), officially the Republic of Paraguay ( es, República del Paraguay, links=no; gn, Tavakuairetã Paraguái, links=si), is a landlocked country in South America. It is bordered by Argentina to the south and southwest, Brazil to th ...
,
Uruguay
Uruguay (; ), officially the Oriental Republic of Uruguay ( es, República Oriental del Uruguay), is a country in South America. It shares borders with Argentina to its west and southwest and Brazil to its north and northeast; while bordering ...
, and
Venezuela
Venezuela (; ), officially the Bolivarian Republic of Venezuela ( es, link=no, República Bolivariana de Venezuela), is a country on the northern coast of South America, consisting of a continental landmass and many islands and islets in th ...
, "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." In Chile, for example, examining magistrates formerly had the "triple role" of overseeing the investigation, rendering a verdict, and passing a sentence.
By the end of the 20th century, most Latin American countries followed Germany in eliminating the examination phase.
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. Beginning in 2002, Chile began to incorporate more adversarial aspects into its inquisitorial system, and this reform was implemented fully by 2005.
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. However, investigations in past
human rights abuses in Chile have continued to use investigative magistrates at the first stage.
Greece
Greece, which follows a French-style legal system, has retained the investigative magistrate. In Greece, the investigative magistrate interviews witnesses, reviews the evidence, and refers cases to the public prosecutor, who makes the ultimate charging decision. Greek investigative magistrates can also issue
arrest warrants
An arrest warrant is a warrant issued by a judge or magistrate on behalf of the state, which authorizes the arrest and detention of an individual, or the search and seizure of an individual's property.
Canada
Arrest warrants are issued by a ...
.
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 The Italian Code of Criminal Procedure contains the rules governing criminal procedure in every court in Italy. The Italian legal order adopted four codes since the Italian Unification. After the first two codes, in 1865 and 1913, the Fascist Gover ...
. 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
In law, cross-examination is the interrogation of a witness called by one's opponent. It is preceded by direct examination (in Ireland, the United Kingdom, Australia, Canada, South Africa, India and Pakistan known as examination-in-chief) and ...
and negotiation between the parties, although it preserved some elements of the continental legal tradition.
Switzerland
![Carla Del Ponte](https://upload.wikimedia.org/wikipedia/commons/a/a2/Carla_Del_Ponte.jpg)
Before 2011 Switzerland had four different models of inquiry: examining magistrate models I and II (') and public prosecutor models I and II ('). Different
cantons of Switzerland
The 26 cantons of Switzerland (german: Kanton; french: canton ; it, cantone; Sursilvan and Surmiran: ; Vallader and Puter: ; Sutsilvan: ; Rumantsch Grischun: ) are the member states of the Swiss Confederation. The nucleus of the Swiss Co ...
used different models. 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. 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 and examination, making the decision of whether or not to charge, and prosecuting the case.
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.
One prominent Swiss investigative magistrate was
Carla Del Ponte
Carla Del Ponte (born February 9, 1947) is a former Chief Prosecutor of two United Nations international criminal law tribunals. A former Swiss attorney general, she was appointed prosecutor for the International Criminal Tribunal for the former ...
, 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
The International Criminal Tribunal for Rwanda (ICTR; french: Tribunal pénal international pour le Rwanda; rw, Urukiko Mpanabyaha Mpuzamahanga Rwashyiriweho u Rwanda) was an international court established in November 1994 by the United Nation ...
.
Elsewhere
Poland
Poland, officially the Republic of Poland, is a country in Central Europe. It is divided into 16 administrative provinces called voivodeships, covering an area of . Poland has a population of over 38 million and is the fifth-most populou ...
historically had examining magistrates; Polish examining magistrate
Jan Sehn investigated the Nazi atrocities at
Auschwitz in preparation for the
Auschwitz trials. However, in 1949, the Polish judiciary was restructured along
Soviet lines, and the position of investigating magistrate was eliminated.
West Germany
West Germany is the colloquial term used to indicate the Federal Republic of Germany (FRG; german: Bundesrepublik Deutschland , BRD) between its formation on 23 May 1949 and the German reunification through the accession of East Germany on 3 O ...
abolished the examining magistrate at the end of 1974.
Portugal abolished the examining magistrate in 1987.
In popular culture
The 1969 film
''Z'' stars an examining magistrate based on
Christos Sartzetakis
Christos Sartzetakis ( el, Χρήστος Σαρτζετάκης; 6 April 1929 – 3 February 2022) was a Greek jurist and a supreme justice of the Court of Cassation, who served as the President of Greece from 1985 to 1990.
Early life and educ ...
.
See also
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Magistrate (England and Wales)
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United States magistrate judge
In United States federal courts, magistrate judges are judges appointed to assist U.S. district court judges in the performance of their duties. Magistrate judges generally oversee first appearances of criminal defendants, set bail, and conduc ...
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{{refend
Judges
Judiciaries
Criminal procedure
Criminal investigation