The problem we see in the US is that the chief prosecutor, law enforcement and investigative officer, the attorney general, works for the Executive Branch. The courts can issue an order, but it must be acted upon by the executive branch. Of course it looks fishy when the executive outright refuses to enforce an order/ruling, so there is usually political obfuscation and delaying tactics accompanied by claims that cooperation is not the issue. The problem becomes most acute when the congress, which is supposed to act as a balance in these cases, is really a rubber stamp for the executive. This, of course, presupposes that the judges do not owe their allegiance to the same executive. I can swear there ain't no heaven but I pray there ain't no hell. _ Blood Sweat & Tears
Once a crime has been discovered the judiciary is immediately informed and whoever happens to be on his turn of duty handles the case at the outset. There is a strong component of chance since a criminal investigation is rarely transfered to another investigative judge.
There is further the constitutional obligation to investigate all events of a possible crime without distinction. An investigative judge cannot choose a crime to pursue. Chance and obligations play a strong role as checks and balances.
The only external control over an investigation can be exercised by the Minister of Justice who can send inspectors. It is a standard ploy in all trials with a strong political component. Parliament can put checks on the judiciary by passing vexing laws designed to create chaos in the judiciary or cut funding. These laws are generally struck down by subsequent "Supreme Court" rulings as anti-constitutional but have already done their damage by then.
However, how about giving the judiciary its own independent investigative arms and a rather vigorous constitutional mandate, but limiting the jurisdiction of their investigative branches to the behaviour of the legislative and executive branches? So that when a judiciary investigator uncovers a "civilian" crime, they are to hand it over to the "civilian" police, and conversely, when the "civilian" police uncovers evidence of abuses of power, corruption or unconstitutional behaviour, they are to hand it over to the judiciary enforcement agency.
I could see several advantages to this: First, it would establish a much-needed formal split between the police and politicians and the people investigating the police and politicians of criminal activity. Second, because its jurisdiction is limited to investigating crimes committed by the police, politicians (past or present) and a select few other branches of society carefully stipulated in the constitution, it could be given real powers and a tight insulation from political pressure without risking jackboots in the streets.
Another thing that might be worth considering would be to separate the investigation of crimes from the use of force. I.e. when an investigator has prepared a case, he hands it over to a judge who can authorise search or seizure against the suspect. The judge then hands the case to the "enforcement" branch - which is wholly separate from the investigating and judiciary authorities - for execution. I've read somewhere that the German Verfassungsschutz operates along these lines. The way I heard it, it works that way because the BRD - for obvious historical reasons - didn't want to have a secret police that had the power to break into people's homes and drag them off to a basement somewhere.
- Jake Ceterum censeo Chicago esse delendam
There are of course political accusations that the preliminary judge and the investigative judge may collude as a team, but that hardly holds water.
We all welcome checks and balance in our respective systems and the Italian system definitely has bettered the past fifteen years in respect to a defendant's rights. This however is no where perfect since a chimera has been created by introducing instruments and forms typical of the accusatory system while the Italian system remains inquisitorial. The introduction of "plea bargaining" in the nineties undermines the philosophy of inquisitorial law and has caused unresovable paradoxes.
But it's one thing to actually reform the judiciary in collaboration with all forces rather than seek to destroy the judiciary by creating a two-tiered system in which the elite are more equal than we before the law.
I once worked for a federal investigative agency with limited jurisdiction/responsibilities, but it also had powers of enforcement. There was, however, strong sentiment within the agency leadership for many years against using any of the enforcement powers other than purely investigative ones such as those involving search and seizure (which rarely involved physical force BTW. The power to arrest was available but that usually necessitated the need to carry a firearm, so the leadership stayed away from both. This approach worked fine given the environment of the day and the availability of other law enforcement organizations that were willing to exercise the "muscle" when more forceful actions were required. In truth, the lack of "muscle" never cost us a conviction. As a youngster, I failed to appreciate the wisdom of agency policy, but as I matured it became evident. In later years when the older, wiser leaders had departed and everyone strapped on guns and began making arrests, I came to loath the job with its different approach toward fact finding. I can swear there ain't no heaven but I pray there ain't no hell. _ Blood Sweat & Tears
You can imagine what sort of abuse the Berlusconi scheme will cause.
