An examining magistrate is a judge in an inquisitorial system of law who carries out pre-trial investigations into allegations of crime and in some cases makes a recommendation for prosecution. Also known as an investigating magistrate, inquisitorial magistrate, or investigating judge, the exact role and standing of examining magistrates varies by jurisdiction. Common duties and powers of the examining magistrate include overseeing ongoing criminal investigations, issuing search warrants, authorizing wiretaps, making decisions on pretrial detention, interrogating the accused person, questioning witnesses, examining evidence, as well as compiling a dossier of evidence in preparation for trial.
Investigating judges in France have an important role in the French judiciary. They are also a feature of the Spanish, Dutch, Belgian and Greek criminal justice systems, although the extent of the examining magistrate's role has generally diminished over time. 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. In contrast, common-law jurisdictions such as England and the United States have an adversarial system and lack a comparable official. Frequent close interaction with police and prosecutors "may well condition examining magistrates to favor the long-term interests of regular participants over those of the accused." This problem also affects common-law jurisdictions. It has been noted that "in the United States, the focus of concern has been the independence of counsel for the defense, while in France, concern focuses on the independence of the examining magistrate."
The examination phase has been described as "the most controversial aspect of criminal procedure" in civil-law jurisdictions because of "[t]he secrecy and length of the proceedings, the large powers enjoyed by examining magistrates" and "the possibility for abuse inherent in the power of the individual magistrate to work in secret and to keep people incarcerated for long periods."
Some commentators, however, have compared the examining magistrate's role favorably to that of the grand jury in common-law systems. Scholar George C. Thomas III finds that while the grand jury as it exists in U.S. law is an effective investigative function, it lacks the screening functions that the French system has. Thomas notes that under U.S. Supreme Court precedent, U.S. prosecutors are not obliged to present exculpatory evidence to grand juries, and as a result grand jurors hear only evidence from the prosecution. By contrast, under the French system, the French examining magistrate operates as an investigator, and the indicting chamber acts as a screening body expressly responsible for seeking the truth.
By country
Use of the examining magistrate has declined in Europe over time. 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. Switzerland, Germany, Portugal, and Italy have all abolished the examining-magistrate system.
France
In France, the investigating judge () 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 them were so broad that Honoré de Balzac called the investigating judge "the most powerful man in France" in the 19th century.
Later, however, the authority of the investigating judges in France was diminished by a series of reforms, initiated in 1985 by French justice minister Robert Badinter. and extending into the 2000s.