Investigative magistrate

In an inquisitorial system of law, the examining magistrate (also called investigating magistrate, inquisitorial magistrate, or investigating judge), is a judge who carries out pre-trial investigations into allegations of crime and in some cases makes a recommendation for prosecution. The exact role and standing of examining magistrates varies from jurisdiction to jurisdiction; common duties and powers of the examining magistrate include overseeing ongoing criminal investigations, issuing search warrants, authoring wiretaps, making decisions on pretrial detention, interrogating the accused person, questioning witnesses, examining evidence, and compiling a dossier of evidence in preparation for trial. Examining magistrates have an important role in the French judiciary, and are also a feature of the Spanish, Dutch, and Belgian criminal justice systems, although the extent of the examining magistrate's role has generally diminished over time. Several countries, including Switzerland, Germany, Portugal, and Italy, have abolished the position of examining magistrate outright.

John Henry Merryman and Rogelio Pérez-Perdomo have described the examining magistrate's role in civil-law systems as follows:

The typical criminal proceeding in the civil law world can be thought of as divided into three basic parts: the investigative phase, the examining phase (the instruction), and the trial. The investigative phase comes under the direction of the public prosecutor, who also participates actively in the examining phase, which is supervised by the examining judge. The examining phase is primarily written and is not public. The examining judge controls the nature and scope of this phase of the proceeding. The examining judge is expected to investigate the matter thoroughly and to prepare a complete written record, so that by the time the examining stage is complete, all the relevant evidence is in the record. If the examining judge concludes that a crime was committed and that the accused is the perpetrator, the case then goes to trial. If the judge decides that no crime was committed or was that the crime was not committed by the accused, the matter does not go to trial.

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