Examining magistrate

Éric Halphen, formerly a French investigative judge

In France, the investigative judge (juge d'instruction, "judge of inquiry") has been a feature of the judicial system since the mid-19th century, and the preliminary investigative procedure has been a part of the judicial system from at least the 17th century.[13] The sweeping powers traditionally entrusted to the juge d'instruction were so broad that Honoré de Balzac called the examining magistrate "the most powerful man in France" in the 19th century.[14] 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."[15]

Later, however, the authority of the examining magistrates in France diminished in a series of reforms.[16] In 1985, French justice minister Robert Badinter proposed limiting the examining magistrate's role in making custody decisions; Badinter's successor, Albin Chalandon made the same proposal two years later. In 1990, Justice Minister Pierre Arpaillange convened a Human Rights Commission (Justice Penale et Droits de l'Homme), led by the legal scholar Mireille Delmas-Marty.[17] The commission concluded that France's criminal procedure code violated human rights standards,[18] noting that the examining magistrate combined investigative and judicial powers in a single person.[19] The commission proposed a package of due process reforms, including the abolition of the post of examining magistrate and the creation of a "liberty judge" (juge des libertés) in its place. Under the proposed system, the prosecutor and the police would have sole responsibility for conducting the investigation, and the liberty judge would be charged with overseeing pre-trial investigations.[20]

This proposal prompted an outcry from the conservative judiciary, as well as from scholars and the media; "in the context of repeated investigations of Socialist Party officials, the proposition appeared self-interested."[21] Less extensive reforms were adopted instead; legislation coming into effect in 1994 provided a right to counsel for persons in police custody (garde à vue), and also transferred the decision on bail and pretrial detention "to a team of magistrates not involved 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.[22]

Reforms resumed in 2000, with the enactment of the 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.[23] Among other reforms, the 2000 law abolished the power of the examining magistrate to remand defendants into custody and created a new specialized judicial officer, the judge of liberty and detention (juge des libertés et de la détention) to make these determinations.[24]

Renewed calls for further reform to abolish or diminish the powers of the French examining magistrate intensified after a series of botched investigations,[25] including what became known as the Outreau scandal; in that case, more than a dozen people near Boulogne were wrongfully imprisoned (and about half wrongfully convicted) on false charges of child abuse after a flawed investigation by an inexperienced juge.[26][27] 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.[28][29]

Today, examining magistrates (juges d'instruction) are one of four types of French magistrates, the others being trial judges (magistrats de siège), public prosecutors (magistrats debout), and policymaking and administrative magistrates at the Ministry of Justice.[30] Each juge d'instruction is appointed by the president of France upon the recommendation of the Ministry of Justice and serves renewable three-year terms.[31] Magistrates "can move between these four categories, and their career prospects may be subject to the political interests of the government (although promotions must be approved by a high council of the magistrature chaired in the past by the President of the Republic and now by the president of the cour de cassation)."[32] This arrangement has prompted criticism on the ground that the judiciary is not fully independent of the government.[33]

In 1996, political scientist Herbert Jacobs described the still-extensive powers and authority of the examining magistrate:

The examining magistrate ... is responsible for assuring the quality of the investigation that underlies the prosecution, [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.[34]

Examining magistrates initiate an investigation upon an order of the procureur (public prosecutor), or upon the request of a private citizen. The juge d'instruction may issue search warrants, order the seizure of necessary evidence, compel witnesses to appear and give evidence, and request expert testimony; at an investigative hearing, the judge may have witnesses confront each other or the accused.[35] They may also authorize wiretaps.[36] At a later plenary hearing in open court, the investigative judge may issue an order of non-lieu ("no case") or, if the evidence is sufficient, will commit the case to the trial court. Charges of a serious misdemeanor or lesser felonies go to the criminal court directly. In contrast, major felonies are referred to the Court of Appeal for the pretrial hearing. The Court of Appeal decides whether to approve the juge's recommendation, and if it does the case is turned over to the Assize Court.[37] 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.[38]

In the year 2000, only about 7% of criminal investigations in France were directed by a juge d'instruction.[39] By 2010, that number had declined further to 4%, with police overseeing the rest.[40] 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.[41] Nevertheless, examining magistrates "are seen as important, independent arbiters, examining the most sensitive and serious allegations."[42] A few examining magistrates, such as Renaud Van Ruymbeke, Thierry Jean-Pierre, and Éric Halphen have become widely known for their investigations into corruption and political scandals; such figures have investigated high-level government officials, including prime ministers, and made widely publicized visits to the headquarters of the major French political parties, reflecting their broad powers.[43]

In France, many magistrates belong to trade unions. 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.[44]

In Spain, a juez de instrucción is an examining judge,[45] and a juzgado de instrucción is the office of an examining judge.[46] 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 (Audiencia Nacional) or where another court has jurisdiction ratione personae."[47] In addition to investigating crimes of all sorts, "the investigating judges are competent to try petty offense cases."[48]

Among the most famous Spanish investigating judges was Baltasar Garzón, a polarizing figure known for investigating high-profile corruption and human rights cases. Garzón was known for invoking the doctrine of universal jurisdiction to issue an international arrest warrant for Chilean dictator Augusto Pinochet, leading to his apprehension in London in 1998. Garzón also gained attention for overseeing an inquiry into atrocities committed during the Spanish Civil War (despite a 1977 amnesty act) and human rights abuses committed during the dictatorship of Francisco Franco. Garzón was convicted of illegal wiretapping in 2012 and was suspended from the bench for 11 years.[49]

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.[50]

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.[51]

In Belgium, criminal proceedings are usually initiated by the public prosecutor (Procureur des Konings or procureur du roi), who typically decides whether to issue a summons to a suspect ordering him or her to appear in court. However, in "more serious or complicated cases" the prosecutor can defer to matter to the examining magistrate (onderzoeksrechter or juge d'instruction), who is an independent judge and member of the tribunal of first instance (Rechtbank van eerste aanleg or Tribunal de première instance).[52] The onderzoeksrechter has the power to question suspects, but not under oath; he or she may also question witnesses, issue search warrants, and issue detention orders. The onderzoeksrechter generates a report on the outcome of the investigation and then refers it to the raadkamer, an arm of the court, to decide whether to dismiss the case, allow it to proceed, or (in certain circumstances) to refer it to another court.[53] The role of the onderzoeksrechter role is unusual, because he or she is simultaneously a judge and an officer of the police judiciaire.[54]

In the Netherlands, the position of examining magistrate has existed since 1926, and the powers of the office were strengthened in 1999.[55] Dutch public prosecutors are charged with supervising criminal investigations and ensuring the "legitimacy, fairness and overall integrity" of the investigation and pretrial proceedings.[56] In addition to their investigative role,[57] examining magistrate is also charged with making determinations as to the lawfulness of arrests and as to pretrial detention.[58] 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.[59] For the most intrusive modes of investigation, such as wiretapping or other telecommunication intercepts, public prosecutors must secure the approval of the examining magistrate.[60][61]

In Latin America, the investigative (sumario or instrucción) phase of a criminal prosecution was historically overseen by an examining magistrate, preceding the trial (plenario) phase.[62][63] 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.[64] 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."[65] In Chile, for example, examining magistrates formerly had the "triple role" of overseeing the investigation, rendering a verdict, and passing a sentence.[66]

By the end of the 20th century, most Latin American countries followed Germany in eliminating the examination phase.[67] 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.[68] Beginning in 2002, Chile began to incorporate more adversarial aspects into its inquisitorial system, and this reform was implemented fully by 2005.[69] 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.[70] However, investigations in past human rights abuses in Chile have continued to use investigative magistrates at the first stage.[71]

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.[72] Greek investigative magistrates can also issue arrest warrants.[73]

Italy abolished the examining magistrate in 1989, as part of a broader overhaul of the Italian Code of Criminal Procedure.[74] The reform transferred the investigative functions of the examining magistrate to public prosecutors,[75] who in Italy are also considered judges.[76] 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.[77] 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.[78]

Carla Del Ponte

Before 2011 Switzerland had four different models of inquiry: examining magistrate models I and II (Untersuchungsrichtermodell) and public prosecutor models I and II (Staatsanwaltschaftsmodell).[79] Different cantons of Switzerland used different models.[80] 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.[81] 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."[82] 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."[83] 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.[84]

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.[85]

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.[86]

Poland historically had examining magistrates; Polish examining magistrate Jan Sehn investigated the Nazi atrocities at Auschwitz in preparation for the Auschwitz trials.[87] However, in 1949, the Polish judiciary was restructured along Soviet lines, and the position of investigating magistrate was eliminated.[88]

West Germany abolished the examining magistrate at the end of 1974.[89][90] Portugal abolished the examining magistrate in 1987.[91]