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Examining Magistrate's Function and Involvement in Investigative Matters

NCJ Number
European Journal on Criminal Policy and Research Volume: 14 Issue: 2-3 Dated: August 2008 Pages: 225-235
Beatrix Elsner; Bruno Aubusson de Cavarlay; Paul Smit
Date Published
August 2008
11 pages
This article gives a brief overview of the division of roles during the investigative stage between court, Public Prosecution Service (PPS), and police explaining the role either an Examining Magistrate or an Investigative Judge plays in several European countries.
Findings indicate that in those countries that have got an Examining Magistrate in their criminal justice systems, in accordance to the European-wide increasing power of Public Prosecution Services (PPS), the importance of this judicial institution has diminished. In all countries the PPS has taken over some of the Examining Magistrate’s original duties as investigating agency and the PPS is gaining more and more independent decisionmaking power at the investigatory stage. The increasing establishment of the PPS in investigations and the decreasing importance of the Examining Magistrate, in practice, raise the question if the Examining Magistrate embraces his/her legal role and function as ruler of the investigation. Even if the Examining Magistrate is not obliged anymore to conduct and rule on investigations solely, in all study countries his actual involvement in issuing certain (coercive) measures or in giving his approval to those is mandatory. In all European countries studied, the PPS has gained an important legal role in investigative matters. In most of the countries, it has already become the head of investigation or it has, at least, gained an indispensable position in criminal investigations. Nonetheless, its actions are still subject to control and restrictions from a judge or a court in all countries. Other systems, however, still provide for a judicial authority which shares PPS status as the head of investigation. Therefore, there is a need to differentiate between two kinds of judicial involvement: (1) systems with an Examining Magistrate and (2) systems with an Investigating Judge. This article explains the two different models with each country’s specialty pointed out. It also indicates how far the different types of judicial authorities still have real impact on PPS work and are able to influence the investigation in practice. Tables and references