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THE JUDGE in the PRE-TRIAL INVESTIGATION Stijn Franken1

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THE JUDGE in the PRE-TRIAL INVESTIGATION Stijn Franken1 The Judge in the Pre-Trial Investigation 31 THE JUDGE IN THE PRE-TRIAL INVESTIGATION Stijn Franken1 1. THE NARROW MARGINS OF THE DEBATE The debate in the Netherlands upon the organisation of the (pre- trial) investigation in criminal cases is one of small steps. Truly new points of view are relatively rare. The arguments presented do not change essentially in the course of the years. Diverse insights and outcomes are mainly the result of a difference in the legal-political weighing of interests which in themselves are not at issue. It is self- evident that the passage of time is a relevant factor in this context: at a given moment, more or less weight may be attributed to a specific argument than before, particularly because of changing circum- stances. This could give cause to reconsider choices made earlier. Consequently, it is not even surprising that positions are taken in the current debate which show similarities to positions also defended in a somewhat dimmer and more distant past, but which subsequently seemed to be outmoded. In my opinion, such a pattern is recognisable in the Dutch debate upon the role of the examining magistrate in the pre-trial investiga- tion. The tasks and responsibilities of a judge at this stage of the criminal proceedings are also connected with the positions of other participants in the proceedings and with the rules and practice of the trial. As a consequence, room for too rash changes of course is limited in a certain sense: a different view of the place of the exam- ining magistrate in the pre-trial investigation would after all have repercussions on the role of the Public Prosecution Service and the defence and on the relationship between the preliminary investiga- tion and the trial.2 At the same time, within those narrow margins, a 1 Professor of Criminal Law and the Law of Criminal Procedure in Utrecht and lawyer in Amsterdam. The manuscript of this chapter was finished in the end of 2008. 2 See also P.P.J. van der Meij, ‘De wankele status van de rechter-commissaris in strafzaken’, Nederlands Juristenblad 2008, pp. 2444–2450. 32 Stijn Franken new weighing of interests could result in the legislature reverting to a position taken not too long ago: In the past years, partly as a result of several legislative amendments, the involvement of examining magistrates in pre-trial investigations in criminal cases has decreased. Examining magistrates have taken some distance from investigations and have less of a view of what goes on in them. I consider this undesirable, in view of the great impor- tance of judicial involvement in preliminary investigations.3 Such importance lies in the progress, balance and completeness of the pre-trial investigation. According to the legislature, the current proposals to strengthen the position of the examining magistrate are for the purpose of providing more legal protection – by expanding the possibilities of the accused to request the examining magistrate to conduct certain investigative acts – as well as a more expeditious hearing of cases in court. To achieve this, the formal frameworks of the preliminary judicial investigation (gerechtelijk vooronderzoek) and the mini-instruction (mini-instructie) will be abolished. Their place will be taken by general provisions which enable examining magistrates to develop activities in the pre-trial investigation, on demand by the Public Prosecution Service, at the request of the defence or ex officio. In addition, a material strengthening is pur- sued in terms of sufficient capacity, quality and support. Examining magistrates will thus be better equipped to exert more influence on pre-trial investigations than has been the case in the past years and in departure from positions taken fairly recently by the legislature. To achieve this goal an examining magistrate, who has to conduct some investigation in a case, ought to have, at any rate, the court documents at his or her disposal.4 3 Explanatory Memorandum to the Draft Bill of the Examining Magistrates (Strengthened Position) Act (Wet versterking positie rechter-commissaris), p. 1, also for the following. 4 On the interpretation of the words “any investigation”, see also J. Hielkema, ‘De rechter-commissaris in strafzaken: leidender of lijdelijker?’, in: A. Harteveld, D.H. de Jong & E. Stamhuis (red.), Systeem in ontwikkeling (Knigge-bundel), Nijmegen: Wolf Legal Publishers 20005, esp. pp. 270–271..
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