Civil law systems rely less on judges and more on academic legal experts to make legal interpretations. In a civil law system, the judge’s role is to establish the facts of the case and to analyze and apply the legislature’s written laws. Because of this, legislators and legal scholars who draft and interpret the codes are important in civil law legal systems.
The role of judges is different in civil law systems compared to common law systems. There are two types of judges in a civil law system: an investigating judge (or magistrate) and trial or sitting judges. Civil law systems are based on the belief that justice is best served when a judge is an active participant in investigating the facts of the case, thus the investigating judge or magistrate will typically lead the investigation. Unlike common law systems, which focus on the trial to determine the facts, civil law legal systems mostly focus on pre-trial investigation and hearings to establish the facts. The actual trials can be relatively brief and informal because the trial judge will review the case file developed by an investigating judge. During trial, witnesses are generally allowed to give additional kinds of evidence and the defendant often gives a statement. Cross-examination is rare.
Key Justice Participants in Civil Law Systems
Police: The main role of the police is to inform the prosecutor about a crime. In many civil law countries, there are “judicial police” who are tasked with assisting the investigating judge and prosecutor in the investigation and may have power to search a home or business, collect evidence, and arrest suspects.
Prosecutor: The prosecutor’s role can vary among civil law countries —representing the state, society, and/or the victim. The prosecutor opens the preliminary investigation and his/her main role is to determine whether sufficient evidence exists to refer the case to the investigating judge. The prosecutor’s investigation will be mostly paper-based and will not be as extensive as the investigating judge, and the prosecutor’s role may be limited to verifying that the correct procedures are followed as the case moves through the legal system. In many civil law systems, the prosecutor is an advisor to the court rather than an adversarial party.
Investigating judge: Basically, the investigating judge acts like the typical prosecutor we are used to in the common law system. The police present evidence to the investigating judge as a case file (sometimes called a “dossier”). The investigating judge then reviews the file and asks most of the questions of the witnesses in preliminary court hearings. This judge is responsible for leading criminal investigations, including interviewing the accused, victims and witnesses; determining the appropriate type of evidence to be heard; and preparing the case file to be passed on to the sitting judges for their verdict. The investigating judge has broad powers, including ordering warrants and visiting the crime scene. Many civil law countries do not have a trial as you may be familiar with it (a presentation of evidence on consecutive days using oral proceedings). Instead, the investigating judge will call for oral testimony when needed to develop the case. This means that court hearings may take place over months or years, with the case only having scheduled hearings a few days at a time. Once the investigating judge finishes the investigation, he or she can refer the case to a trial judge or panel of trial judges for the formal trial.
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