The 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. However, 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. Later, however, the authority of the investigating judges in France was diminished by a series of reforms, and extending into the 2000s. Today, investigating judges 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. Each investigating judge is appointed by the
president of France upon the recommendation of the Ministry of Justice and serves renewable three-year terms. 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 ''''." 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.
Andorra 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.
Belgium and the Netherlands 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. The '
has the power to question suspects, but not under oath, and 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 is unusual, as the ' simultaneously serves 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. 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.
Latin America In
Latin America, 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. 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. Beginning in 2002, Chile began to incorporate more adversarial aspects into its inquisitorial system, and this reform was implemented fully by 2005. However, investigations in past
human rights abuses in Chile have continued to use investigative magistrates at the first stage. Greek investigative magistrates can also issue
arrest warrants.
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 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 and negotiation between the parties, although it preserved some elements of the continental legal tradition. Different
cantons of Switzerland 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.
Elsewhere Poland 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 abolished the examining magistrate at the end of 1974. Portugal abolished the examining magistrate in 1987. == In popular culture ==