Investigating judge

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Investigative judges (also: investigating judges or journalists) are officials with judicial independence who are assigned certain tasks in the context of criminal investigations.

Legal situation in Germany

When investigating judge ( § 162 Code of Criminal Procedure), after the German Code of Criminal Procedure (CCP) Judge designated, can make the decisions that such a serious interference with the fundamental rights include the persons concerned that their arrangement constitutionally judges reserved stays. This includes, for example, the search of living spaces, the ordering of telecommunications surveillance or the issuing of an arrest warrant . Investigative judges are usually criminal judges of the respective court.

The term examining magistrate is often used synonymously. Before the preliminary judicial investigation was abolished in 1977, the StPO named a judge who was responsible for investigating the facts of the case in the preliminary proceedings, factually correct investigating judge. The linguistic usage is imprecise today, since in today's StPO the tasks of the investigating judge no longer extend to researching the facts, but only to the judicial review of the investigative measures of the public prosecutor's office.

When it comes to issuing an arrest warrant, one also speaks of a judge .

Jurisdiction

Investigative judges are usually criminal judges of the respective court who, in addition to their other official business, control the investigative activities of other organs. A court can - but does not have to - appoint judges for investigative tasks who are only investigative judges.

The responsibility for judicial investigative acts depends on the stage of the procedure ( §§ 125 ff. StPO).

Before public charges are brought

In principle, investigating judges at the district court are responsible before the indictment ; their local jurisdiction corresponds to the district court district. Therefore, the regional courts do not appoint investigating judges . However, judges at the regional court can perform urgent judicial service as investigative judges at night and on weekends ( Section 22c GVG).

In the cases of § 120 GVG i. V. m. In accordance with Section 169, Paragraph 1, Sentence 2 of the Code of Criminal Procedure ( state security matters, etc.), the investigative judges of the Federal Court of Justice are responsible as long as the investigations are conducted by the Federal Public Prosecutor , in all other cases the investigative judges at the Higher Regional Court . Your local area of ​​responsibility is the entire federal territory ( Section 169 (2) StPO).

If an arrest warrant has already been issued, the judge who issued it will also be responsible for all further investigative acts. However, if the arrest warrant was issued for the first time in response to the complaint (by the public prosecutor's office) by the complaint court, the judge against whose decision the complaint was directed still decides ( Section 126 (1) StPO).

After public charges have been brought

If an indictment has been brought, the court dealing with the matter is responsible for judicial investigations. This also applies to the so-called interim proceedings until the indictment is admitted to the main hearing. Collegial courts generally decide on investigative acts on a collegial basis, d. H. a chamber or a senate cannot appoint its own investigative judge. In urgent cases, however, the chairperson decides, whose decision does not require confirmation by the college. However, it can be requested from the other parties involved in the process.

In the event of an appeal, the court of appeal is responsible.

In the case of an appeal, the last trial court concerned is responsible. The appellate court may, however, revoke an arrest warrant itself if it revokes a judgment related to it by means of a factual decision ( Section 126 (3) StPO). However, it may not disable him.

The juvenile judge as investigative judge

According to § 34 para. 1 JGG is in cases involving juveniles for those tasks that otherwise purview of the judge at the district court, juvenile court jurisdiction. This also applies to the jurisdiction of the judge at the local court as investigating judge, so that the youth judge is also responsible for decisions in detention cases or other decisions assigned to the investigating judge.

It is controversial whether a division of business is permissible in which a judge is only assigned the duties of the investigating judge in proceedings against juveniles, without this judge also being active in other juvenile criminal proceedings. The Federal Constitutional Court was able to leave this question open in a decision of May 12, 2005.

Individual tasks of the investigating judge (not final)

The investigating judge can, for example, issue decisions that are reserved for him alone:

or carry out other investigative acts:

  • Hearing witnesses in the preliminary proceedings

Appeal

An appeal is possible against decisions of the investigating judge. The issuing judge ( iudex a quo ) can remedy it, otherwise he has to refer the matter to the appellate court immediately, at the latest within 3 days ( iudex ad quem ). The same applies to investigative acts by collegiate courts. The court of appeal is determined according to the general rules of the GVG.

The complaint has no suspensive effect ( Section 307 StPO). It is only permissible against decisions by the investigating judge at a higher regional court or the Federal Court of Justice if it involves arrest, temporary placement in a psychiatric institution, seizure or search ( Section 304 (4) and (5) StPO).

Legal situation in Switzerland

The role of investigating judge existed in Switzerland until January 1, 2011 at various levels: in addition to cantonal investigating judges, there are also those whose jurisdiction is based on federal law (e.g. federal investigating magistrates, investigating magistrates for military justice ). In contrast to the military, most civil examining magistrates were empowered to issue penalties .

With the entry into force of the unified federal StPO on January 1, 2011, as before in Germany and Austria, the process model changed from the investigative judge to the public prosecutor's office model. The examining magistrates are no longer required, and the criminal investigation is now exclusively managed by the responsible public prosecutor . The imposition of compulsory measures such as house searches, security or pre-trial detention is now the responsibility of special compulsory measures courts , which roughly correspond to the German investigating judge .

The military code of criminal procedure is the only one not to be replaced by the Federal StPO, which is why the military investigating magistrates continue to exist.

Individual evidence

  1. Meyer-Goßner / Schmitt, StPO, § 169 Rn. 2
  2. Meyer-Goßner / Schmitt, StPO, § 126 Rn. 9