Examining magistrate

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.

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.

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.

[2][3] 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.

"[5] 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.

[11] Later, however, the authority of the investigating judges in France was diminished by a series of reforms,[11] initiated in 1985 by French justice minister Robert Badinter.

[17] Each investigating judge is appointed by the president of France upon the recommendation of the Ministry of Justice and serves renewable three-year terms.

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.

[27] In addition to their investigative role,[28] examining magistrate is also charged with making determinations as to the lawfulness of arrests and as to pretrial detention.

[27] For the most intrusive modes of investigation, such as wiretapping or other telecommunication intercepts, public prosecutors must secure the approval of the examining magistrate.

[31] 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.

[1] 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.

In Greece, the investigative magistrate interviews witnesses, reviews the evidence, and refers cases to the public prosecutor, who makes the ultimate charging decision.

[38] Italy abolished the examining magistrate in 1989, as part of a broader overhaul of the Italian Code of Criminal Procedure.

[41] 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.

[8] 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.