Iman Yousefi; Mohammad Sadegh raisi
Abstract
The investigating magistrate that has been the basic difference between the inquisitorial and adversarial criminal procedure systems has been faced with some challenges in the past two decades. The practical effect of these challenges has been in two ways, abolishing this institution (Italy and Germany) ...
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The investigating magistrate that has been the basic difference between the inquisitorial and adversarial criminal procedure systems has been faced with some challenges in the past two decades. The practical effect of these challenges has been in two ways, abolishing this institution (Italy and Germany) and derogating its functions (Franc). criticism can be divided in three branches. First there is real doubt in protecting impartiality because the investigating magistrate can gather the related evidences. This problem is stronger when the decisions of the magistrate is against a fundamental rights of people . second the existence of this institution can causes a very long criminal procedure. Because in models with investigating magistrate there is need to two satisfactions, the trial and investigating judge and this can prolong the process. Third the investigating judge can investigate only more important crimes because of the practical problems. the practical results of the situation is the lack of separation of investigation and prosecution and this means that the prosecutor can investigate a lot of crime. The absence of investigating judge in less important cases is contrary to its philosophy. Removing from challenges against investigating magistrate that are related to most basic rules (for example the right to impartiality, fair trial, the right to process without delay) and getting close with the Islamic criminal procedure and deleting a characteristics of inquisitorial system and taking a good face to global society , need to reviewing of this institution.
