In France, a examining magistrate is a magistrate charged with diligenter judicial enquiries. It can generally carry out an investigation only when the Procureur opened information. It can use judiciary police officers to carry out acts of investigation in their delivering letters of request. It carries out its investigation with load and with discharge and cannot in no case to pronounce Jugement.
The role of the examining magistrate in the French penal procedure
The Juge of instruction has the role of making " any act useful for the manifestation of the vérité". Concretely, its mission is thus to make an investigation, which will be able to lead to a judgment. In this case, the judgment will be taken on the basis of survey carried out by the judge. In order to conclude his mission, the judge has very widened capacities of investigation. Since the law n° 2000-516 of June 15th, 2000 the examining magistrate can require of the Juge freedoms and detention to place in detention pending trial.
A judge does not decide to make an investigation. He is seized by the parquet floor or a Victime which constitutes civil Partie. He can inquire only into the facts of which he is seized. There is, with that, a double justification: on the one hand, in France, it is the Public prosecutor which with the control of the investigations and the continuations, the examining magistrate intervenes only by exception. In addition, the judge has great coercive capacities and it would be dangerous for the Liberté which it can at any moment implement them at his own way. Therefore, the judge inquires only into the facts for which one asks him to inquire.
The Court of appeal is the single authority entitled to pronounce the Dessaisissement file of an examining magistrate. Only the Public prosecutor close to the Court of Appeal or the Public prosecutor close to the Court of appeal are entitled to seize it. The latter can act of their own boss or at the request of the parts.
N the other hand, the judge is free to inquire as he hears it. Nobody can give him orders and it is free to carry out the investigations which it considers useful. This independence is not without control, there are several rules which are applicable. Initially, the judge " informed with load and décharge" (Article 81, al. 1 of the criminal procedure code). The judge must also inform within a reasonable delay (Article 175-2), which often supposes to make choices and to draw aside from the investigations which could not be carried out within a reasonable delay. The parts (Put in examination, civil Part), can require of the judge who it carries out investigations. He can refuse but must justify in writing his decision, which is likely of call.
Capacities of investigation
The examining magistrate is the investigator who has more capacities: it can carry out the hearing of any person, make appear the witnesses by the police force, deliver mandates, hear the civil parts and put in examination, appoint experts, proceed to Perquisition S and Saisie S, to order phone-tappings, Sonorisation S…
Gradually, all these capacities were more or less granted also to the investigators police force, under the control of the parquet floor, but it is always under conditions more drastic than for the examining magistrate. Concretely, however, the judge seldom does all that and he delegates his powers to the judiciary police officers, by the mechanism of the Letter of request. He is on the other hand the only one to appoint experts (because he cannot delegate this power), and to hear the put in examination (because the people put in examination cannot be understood that by a Magistrat). The essence of the work of the examining magistrate consists in directing the investigation (by telephone or by meeting the investigators, while launching letters of request, Expertise S…) and to question put in examination, which in practice takes the most time.
The examining magistrate is also a judge. It can thus pronounce measurements which are legal, that cannot thus pronounce an investigator. The judge can put in examination a person, i.e. to notify to him that there exists against her a certain number of elements which leave think that she made a Infraction. The accused term was replaced in 1994 by " put in examen". Put in examination a certain number of rights has, but especially it can weigh against him obligations. The examining magistrate can place it under judicial control, i.e. to intimate to him to respect certain obligations, like looking after themselves or not meeting such person. It can also seize another judge, the Juge of freedoms and detention, to place a person in Detention pending trial. Since January 1st 2001, the examining magistrate cannot decide any more to only place a person in Prison. Another judge, the judge of freedoms and the detention, also intervenes, who takes, in fine, the decision. The examining magistrate can, on the other hand, always release somebody who is in detention pending trial.
Lastly, at the conclusion of the investigation, the judge decides if there are sufficient loads to return put in examination before a court or a Court of Assizes. The judge thus does not come to a conclusion on the culpability, but simply about the sufficient character of the loads. If there are not enough loads, the examining magistrate returns a Non-lieu. That also arrives - even especially - when the culprit is not found.
Contradictory character of the instruction
By principle, the instruction is not contradictory. It is secret. It was conceived on a model strictly Inquisitorial. Gradually, it was modified to become more contradictory, i.e. to open the door with the debates during the phase of investigation. Initially, the accused were entitled to a lawyer in 1896, which is present during the interrogations of its customer and has access to the file. Recently, the lawyers had the right to make requests for investigations. Certain decisions of the examining magistrate are likely of call: refusal to proceed to investigations, decisions of reference or nonplace… The call is carried in front of a special training of the Court of Appeal, the Chambre of the instruction.
The mission of the judge is not thus to say the truth, but it informs with load and discharge (article 81 of the Criminal procedure code). It must gather evidence in order to determine if there exist sufficient loads against one put in examination. If it estimates that there exist sufficient evidence, it returns an dismissal order in front of the Magistrates' court or an ordinance of committal for trial (to seize the Court of Assizes). In the absence of sufficient loads, it returns a nonsuit, which puts an end to the procedure.
He plays the part of filter, as well as the parquet floor, to avoid seizing the court of businesses " injugeables". The judge has important means of investigations, juridically at least, which justify that it is seized for the complex affairs or low registers.
Compared to the investigators of police force or gendarmerie, it has several advantages: it is qualified generally more, it knows generally best the procedure, it also knows how the others reason magistrates of the seat and can thus join together a file where it will be able to draw the answers to their questions. In addition, the examining magistrate is an independent judge, which prevents that investigations are not slowed down by external pressures. Indeed, the police force is attached to the Minister of Interior Department, and the public prosecutor works under the authority of the Minister for Justice. However, it was noted in businesses known as " politico-financières" that the political power had tried without success to slow down the instruction of the businesses by making pressure on the Parquet floor and the police force, the existence of the examining magistrate having made it possible to make failure with these attempts. It is not thus surprising that certain political personalities wish the disappearance of the examining magistrate.
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