Investigating Judge: Definition, Duties and Legal Classification
The term investigating judge refers to a judicial function within German criminal proceedings. In this role, the investigating judge is active primarily during the early stages of a criminal case and carries out state interventions that are particularly sensitive to fundamental rights. The legal status, areas of responsibility, and appointment of the investigating judge are determined by various provisions of the Code of Criminal Procedure (StPO), which are explained in detail below.
Duties and Responsibilities of the Investigating Judge
Investigating Judge in Investigation Proceedings
The investigating judge becomes involved during the preliminary proceedings, i.e., during criminal investigations. The main responsibilities include the judicial order or confirmation of so-called measures affecting fundamental rights. This includes in particular:
- Searches and seizures pursuant to Section 105 (1) StPO (from dwellings, objects, persons)
- Ordering pre-trial detention under Sections 112 ff. StPO (arrest warrant)
- Ordering other measures depriving liberty, for example, placement in a psychiatric hospital under Section 126a StPO
- Ordering telephone surveillance or other surveillance measures under Section 100a StPO
- Interrogation and judicial examination of the accused (Section 115 StPO)
The involvement of the investigating judge in these cases is a judicial reservation mandatorily required, as these measures regularly constitute profound encroachments on fundamental rights — in particular personal liberty (Art. 2 para. 2 sentence 2 GG), the secrecy of mail and telecommunications (Art. 10 GG), and the inviolability of the home (Art. 13 GG).
Review Function and Decision-Making Authority
The investigating judge reviews the measures requested by law enforcement agencies, primarily the public prosecutor or police, for their legal admissibility and the specific circumstances of each case. The judicial review ensures that the interests of the affected persons are protected in light of the principle of proportionality. The investigating judge is of particular importance in urgent decisions, such as arrest warrants or imminent danger.
Other Duties
In addition to the core tasks under the Code of Criminal Procedure, investigating judges may assume further responsibilities, such as ordering identification procedures (Section 81b StPO), physical examinations (Section 81a StPO), or even the judicial oversight of undercover investigations (Section 110a StPO).
Appointment and Organization of the Investigating Judge
Jurisdiction
Investigating judges are generally judges at the local court (criminal court), in special cases also judges at the regional court or at the Federal Court of Justice. The exact number and selection of investigating judges within a jurisdiction are determined by the respective court’s allocation of business plan.
Appointment and Function
Investigating judges are appointed by the president of the respective court . They usually perform these duties in addition to their regular functions. At the Federal Court of Justice there is a special role for the investigating judge, who acts in significant state protection offenses or within the Federal Prosecutor’s Office (Section 169 Judiciary Act, GVG).
Distinction from Other Judicial Functions
The investigating judge function does not constitute a separate judicial career, but is a function, designated in the court’s allocation of business. Unlike decisions on the merits in main proceedings, investigating judges are involved beforehand; they usually decide without oral hearing on the basis of the files.
Legal Basis of the Investigating Judge
Code of Criminal Procedure (StPO)
The relevant provisions are found in the second book of the Code of Criminal Procedure (StPO), particularly in Sections 104 to 111, Sections 112 ff. (pre-trial detention), as well as in the provisions on the surveillance of telecommunications (Section 100a StPO) and other investigative measures.
Judicature Act (GVG)
The jurisdiction and appointment of investigating judges, especially for federal offenses, are governed by Sections 169 ff. GVG. For the Federal Prosecutor’s Office, an investigating judge at the Federal Court of Justice is responsible (Section 169 (1) GVG).
Basic Law
The investigating judge has a special safeguarding function when implementing encroachments on fundamental rights. He is directly bound by the fundamental rights (particularly Art. 2, Art. 13, Art. 10 GG) and the principle of proportionality.
Procedural Significance and Legal Protection
Guaranteeing the Right to be Heard and Remedies
Decisions of the investigating judge can (unless excluded by law) be challenged by appeal or other legal remedies. The possibility of review by the appeals court serves to protect the affected person against unlawful measures.
Procedural Flow and Urgency
In urgent cases, particularly in the event of imminent danger, certain measures may also be ordered by the public prosecutor or police. However, judicial review must then be obtained without delay (Section 104 (3) StPO).
Significance in German Criminal Proceedings
The investigating judge is an independent link between law enforcement authorities and the fundamental rights of affected individuals, indispensable for the rule-of-law conduct of investigative proceedings. The investigating judge stands for neutrality and objectivity in judicial review of intrusive measures, ensures legal oversight, and upholds the principle of proportionality.
Literature and Further References
- Code of Criminal Procedure (StPO)
- Judicature Act (GVG)
- Basic Law (GG)
- Decisions of the Federal Constitutional Court on civil liberties and judicial oversight in investigation proceedings
Summary: The investigating judge plays a central role throughout the German criminal process by reviewing the legal admissibility of state interventions and thus acting as a guardian of fundamental rights during the investigation proceedings. The responsibilities, appointment, legal foundations, and significance of the office are of considerable importance for the rule of law and ensuring a fair criminal procedure.
Frequently Asked Questions
Who appoints the investigating judge and how is this appointment carried out?
The appointment of the investigating judge is made pursuant to Section 162 (1) of the Code of Criminal Procedure (StPO) by the court where the judge is to serve. As a rule, the investigating judge is a full-time judge at the competent local court or regional court. The president of the court assigns this function to individual judges based on the judicial allocation of business. The tasks of the investigating judge may also be divided among several judges. The appointment itself is an internal administrative process and is not subject to direct participation rights for the public prosecutor’s office or police. In exceptional cases, a judge may act as an investigating judge outside of their scheduled assignment if there is urgent necessity (e.g., at night or on standby duty). Appointment is a prerequisite for exercising the formal powers of an investigating judge; without appointment, there is no formal jurisdiction.
What are the main duties and powers of the investigating judge?
The investigating judge performs judicial duties within a criminal investigation proceeding where neutral judicial participation is statutorily required. Core functions include especially the ordering and implementation of pre-trial detention (Section 112 StPO), issuing an arrest warrant, and deciding on searches and seizures (Sections 102ff. StPO). Other responsibilities are judicial examination of suspects and witnesses (Sections 163c, 168c StPO), ordering telecommunications surveillance (Section 100a StPO), and ordering DNA examinations (Section 81a StPO). The investigating judge is strictly bound by fundamental rights and the principle of proportionality and reviews every request for its legal requirements. The function serves as a judicial safeguard to ensure that serious encroachments on fundamental rights are controlled by an independent instance.
What is the significance of the investigating judge for the guarantee of judicial reservation?
The investigating judge acts as a central rule-of-law control body in criminal proceedings to guarantee the so-called judicial reservation. Numerous encroachments on the fundamental rights of an accused or third party — such as deprivation of liberty, searches of homes, mail seizures, phone surveillance, or taking blood samples — may only be ordered by a judge under the Basic Law (Art. 104 GG) and the Code of Criminal Procedure. This prevents law enforcement authorities from unilaterally deciding on serious intrusions. The investigating judge independently examines whether the legal requirements for such measures actually exist, whether the application by the public prosecutor is sufficiently substantiated, and assesses proportionality in each case. As such, the investigating judge is a key pillar for safeguarding individual freedoms and separation of powers.
When and how can an accused person contest a decision of the investigating judge?
There is generally a right of appeal against measures or decisions of the investigating judge, depending on the type of decision involved. For example, an appeal against an arrest warrant can be lodged with the competent regional court pursuant to Section 304 StPO. Complaints are also permitted against orders such as search or seizure. The appeal enables the review of official and judicial measures by a higher court, usually the (criminal) chamber at the regional court. The accused — as well as other affected persons — may file an application or complaint with the court and assert their rights from a defense perspective. In urgent cases, a decision in expedited proceedings is also possible. Especially in pre-trial detention, an application for a detention review is allowed, which compels a comprehensive oral examination of the detention requirements by the court.
For what period does the investigating judge’s jurisdiction extend?
The activities of the investigating judge are confined to the investigation proceedings, i.e., the period until the completion of investigations by the public prosecutor or police and any subsequent filing of charges. Once the public charges (indictment) are brought, the main court (criminal chamber or lay judges’ court) assumes all judicial duties and oversight powers. The investigating judge acts strictly during the prosecutorial investigation stage and loses jurisdiction for encroachments on fundamental rights and orders of pre-trial detention as soon as the case is pending in court (opening of main proceedings). In exceptional cases (e.g., detention matters after withdrawal of charges), renewed jurisdiction for individual decisions may arise.
What role does the investigating judge play in international legal assistance and extradition requests?
In the context of international criminal prosecution, the investigating judge is responsible for certain mutual legal assistance actions, especially for measures involving intrusions into fundamental rights, such as searches or seizures for the benefit of foreign authorities. In extradition proceedings prior to judicial decisions, the judge may also be involved — for example, when ordering extradition detention to ensure the surrender of a wanted person. The legal foundations regularly derive from the Act on International Cooperation in Criminal Matters (IRG) and the relevant international treaties which require judicial oversight of certain actions. Both the substantive and procedural reviews focus especially on the protection of the individual’s fundamental rights in the light of German constitutional law and international law provisions.
What prerequisites must be met before involving the investigating judge?
The involvement of the investigating judge is always obligatory when the specific encroachment on fundamental rights requires judicial authorization — that is, the law specifies that certain measures may be ordered or confirmed only by a judge. A specifically substantiated application by the public prosecutor (or, in urgent cases, the police), stating the alleged offense, the suspected offense, and the factual requirements for the requested measure (e.g., risk of flight, risk of collusion, initial suspicion), is required. The investigating judge reviews compliance with all statutory requirements and proportionality before making a decision. If the formal or substantive prerequisites are lacking, the investigating judge may reject the application or request clarifications; judicial review never takes place “automatically” but always based on a specific circumstance giving rise to judicial reservation.
