Perhaps ChristiaanJ [or someone] can explain the French criminal investigation system to us. Is it true that there is a specialty of investigative judges who perform duties similar to the District Attorney / Grand Jury in the USA and some other countries? Do these investigative judges make the decision as to whether to press changes? If so, there's a good chance for the non-French press to get the wrong impression.
We had the same problem/question in the Spanish Madrid MD80 Crash Case on another forum, I will repost it here (as Spanish and French Investigative Judicary System are fairly similar), simply replace "Spain" by "France" in the central bits:
Originally Posted by x
My problem with the Spanish system is the judge being involved in the investigation.
Why is a judge necessary and what is he / she judging?
Until the investigation is completed by independent / trained accident investigators, there is nothing to judge.
If the judge is conducting another investigation, why? To what end? What is the benefit?
I see several negative issues developing from an investigator with Judaical authority.
Thats probably because all the TV series you see picture the anglo-saxon (UK, US and acolytes) judicary system (which basically is a feudalistic one and has not changed drastically since the year 1000+), whereas in the rest of Europe there are (very) different takes on things depeding on nation (and comparatively modern), and you will have to delve into history a bit to get the picture..
While I am only fairly knowledgable in German judicary matters (the system there is a mix of Bavarian, Austrian and Prussian systems) I have a rough idea of how things work in Spain and that its legal system is based in the Napoleonic (Civil) Code of the beginning of the 19th century (which again had deliberately been partly based on the Roman Legal Code by Justinian).
It is historically quite interesting and revolutionary as it was the first written law "project" in history and as such provided some "legal security" compared to the times before where you depended on a judge arbitrarily interpreting Kings ideas... It introduced a lot of new things like differentiation of civil, penal, parental and administrative law codes, based any trial on the obligation of having a *published* law, prohibition of retroactive punsihment, fairly liberal consensual divorce, etc. (
The "Code Napoleon" (1804))
Now, if you consider that this was just a 5+ years after the French revolution that overthrew the feudalistic aristocratic system (incl its idea of justice, something that never happened in England and so still also holds in the US) and had thrown the French nation into a legal vacuum with horrendously arbitrary trials based on nothing ("The Revolution Eats Its Children", see Robespierre), it of cause took over some stuff of that time (Ancien Regime):
In the pre-revolutionary times the judges factually (as it still is in the UK and the US to some extent: The famous Case Law) exceeded some *legislative* power through their decisions, i.e. actually *made* laws (the old law courts, interestingly, were called "Parliaments", rings a bell?), something that with the idea of separating the state into three powers (legislative, judicative and executive) had to go (one of the main things in the NC was that precedents didnt bind, i.e. didnt have law character).
Now, this *civil* code was written up fairly rapidly and important parts were also rapidly added over 5 years, eg. a Penal Code, and, here comes the part that is interesting for our dicussion, a Code of Criminal Instructions, all based on the original Civil Code:
The Code of Criminal Instruction emerged from a blending of the inquisitory procedure and the accusatory
procedure and it installed an "inquisitorial" system of adjudication, in which a judge (the "instructing" judge) would actively examine claims, exhibits, proofs etc and file a report.
From Wikipedia (
Inquisitorial system - Wikipedia, the free encyclopedia An
inquisitorial system is a legal system where the court or a part of the court is actively involved in determining the facts of the case, as
opposed to an adversarial system where the role of the court is solely that of an impartial referee between parties. Inquisitorial systems are used in almost all countries which were not part of the British empire (the so called *civil law" countries as opposed to the "common law" countries, R.)/End Wikipedia.
Both systems have advantages and flaws (presumably):
The adversial system has to resolve a dialogue between prosecution and defense and so becomes a rather personal matter where a conviction can depend on the quality of either prosecuter or counsel in front of a jury, thus it is claimed that generally richer defendats will be better off than a street bum in the same situation as they can buy lawyer quality.
OTOH the inquisitorial system, where the instructing judge is not impartial referee (he has to follow the executive orders) and the prosecutor has to follow his "instructions" under control and orders of the minister of justice, while treating richer and poorer people more alike, is often supposedly not totally incorporating the presumable innocence of a defendant, as the judge is part of the prosecution. This has been mitigated through different changes the system went through during the last 50 years and can fairly be ignored today.
The goal of the instructing judge in Spain
is not the prosecution of a certain person, but the finding of truth, and as such his duty is to look both for incriminating and exculpating evidence.
For what its worth,
Rattler
More in depth, here (in English):
Criminal court procedures in Spain | Legal guide provided by English-speaking Spanish lawyers with iAbogado, Spain