CCJE-BU(2019)1
Strasbourg, 7 January 2019
CONSULTATIVE COUNCIL OF EUROPEAN JUDGES (CCJE)
Questionnaire for the preparation of the CCJE Opinion No. 22 (2019):
“The role of court clerks and legal assistants within the courts
and their relationships with judges”
Please in your answers do not send extracts of your legislation (except just in one case mentioned below under question 26 where a separate attachment is possibly requested) but describe the situation in brief and concise manner.
Comments on what is also happening in practice, and not only on point of law, will be much appreciated.
Introduction
This questionnaire aims at gaining information about the role and duties of assistants who support judges in their work. However, members of the security and IT staff are not covered. While there are different models in member States, this questionnaire distinguishes between administrative assistants and judicial assistants. The CCJE realises, however, that the line between the two groups is not always clear-cut.
For the purpose of this questionnaire, administrative assistants are assistants who help fulfilling the administrative duties of the court. They work, for example, on the organisation of files, correspondence, preparation of official versions of decisions, collecting documents and statistical data.
Judicial assistants usually have a legal education and support judges or panels of judges in their adjudicative work. Judicial assistants undertake a wide range of tasks such as research, acting as a sounding board in discussions with a judge, preparing memos on whether to grant permission to appeal or drafting judgments. Such persons might be called judicial assistants, law clerks, legal officers, secretaries, Wissenschaftliche Mitarbeiter, Gerichtsschreiber, référendaires or greffiers.
It should be emphasised that the court employees who are assigned their own tasks (i.e. Rechtspfleger) are not within the scope of this questionnaire. However, the questionnaire does touch upon the situation in some countries where judicial assistants, in addition to supporting judges, have their own tasks.
Part I contains questions about both administrative and judicial assistants and then focuses on the duties of judicial assistants. Parts II-IV contain questions exclusively about judicial assistants. Part II concerns the organisation of judicial assistants, Part III concerns the education and selection of judicial assistants, and Part IV concerns their regulation and status. Part V has two general questions about the optimal support for judges and the challenges your member State faces.
I. How are judges supported?
1. Are judges supported in their work by assistants who are not judges at that court (and also not members of the security or IT staff)?
a) by administrative assistants
b) by judicial assistants
In majority of basic/municipal courts in Bosnia and Herzegovina (BiH) judges are supported only by administrative assistants. In higher level Courts, such as Cantonal/District Courts, Supreme Courts, Court of BiH and Constitutional Courts - judges are supported by both administrative and judicial assistants.
2. What is the rationale for employing assistants in your system? If there are different rationales for employing administrative assistants and judicial assistants, please describe those rationales separately.
All judges have administrative assistants, who work as typist – typing decisions, orders, invitations, letters, statements, records etc., who work on case management, sending and sorting correspondence with the parties, etc. Administrative assistants mostly are not lawyers or legal staff. All courts in BiH employ own administrative assistants who support judges in their everyday work.
In regard to judicial assistants – we have three categories.
1. Legal associates in Municipal courts of the Federation of BiH – who are appointed by High Judicial and Prosecutorial Counsel (HJPC) and they act independently in simple civil and execution cases, what is prescribed by Law.
2. Legal associates/advisors in Cantonal courts of Federation of BiH, Supreme Court of Federation of BiH and Constitutional Court of Federation of BiH – they assist judges in their work and they are employed as Civil servants.
3. Legal associates/advisors that support judges in their work – who work as employees of the Courts. We have this category of legal staff in District courts of Republika Srpska, Court of Bosnia and Hrezegovina, Constitutional Courts of BiH and Republika Srpska, Supreme Court of Republika Srpska, High Commercial courts and District Commercial courts of Republika Srpska.
Judicial assistants in Bosnia and Herzegovina have different rankings such as Legal Associates, Senior Legal Associates, Legal Adviser – Assistant, Legal Advisers and Legal Trainees. They act as Civil servants or Court’s employees, depending in which Court they work, and they are not elected by HJPC.
3. What kind of duties judicial assistants have at the courts in your member State? If they perform different duties in different courts, please explain these duties separately. Such duties may include:
· Research, maybe summarised in a memo
· Discussion with the judge(s)
· Memos with a summary of the facts of a case and the relevant law
· Memos with a summary of the facts of a case and the relevant law and a suggestion of the judicial assistant how the case should be decided
· Memos summarising the facts and the relevant law and including a suggestion if a case should be accepted for appeal/constitutional review
· Drafting parts of the judgment, if so which parts? Facts, certain points under discussion?
· Drafting complete judgments
· Proofreading of decisions, maybe including discussing certain points with the judge/pointing out inconsistencies etc.
· Reading draft judgments of other judges and discussing them with the judge
· Crosschecking references
· Drafting press releases
· Drafting procedural decisions
· Deciding procedural issues such as appointing an expert or deciding on costs of proceedings
· Conducting hearings and deciding simple cases autonomously, for example concerning enforcement, or simple criminal cases. If so, please specify if a judge has to approve the decision or if the decision is taken by the judicial assistant alone.
· In addition to tasks such as those mentioned above, judicial assistants may also perform administrative duties such as:
- Writing protocols in hearings
- Organisation of files
- Correspondence with parties
- Preparing the official copies of decisions, preparing decisions for publication
- Collecting statistical data
In the Federation of BiH we have legal associates in Municipal courts, Cantonal Courts, Supreme Court of Federation of BiH and Constitutional Court of Federation of BiH.
o Legal Associates in Municipal Courts are elected by HJPC and they act independently in civil proceedings (small value claims in which the subject matter is monetary claims or damages), enforcement matters, non-disputed proceedings, as well as other proceedings if it is prescribed by law. Legal associates also assist judge in its work, study legal issues, prepare cases for trial and perform other professional activities independently or under the supervision and the direction of the judge.
o Legal Associates in Cantonal courts of Federation of BiH are Civil servants who assist judges in their work, study legal issues, prepare cases for Council sessions, do researches, draft decisions and perform other professional activities independently or under the supervision and the direction of the judge.
o Legal Advisors in Supreme Court of Federation of BiH are Civil servants. They also assist judges in their work, analyse legal issues, prepare cases for trials, analyse and prepare cases for chamber sessions, draft judicial decisions and perform other professional activities independently or under the supervision and the direction of the judge.
o Legal Advisors in Constitutional Court of Federation of BiH are also Civil servants. They assist judges in their work, analyse legal issues, research legal rules and jurisprudence, prepare draft opinions, judgements, decisions and other relevant acts, keep minutes and records of public and closed sessions, prepare reports and analysis, acts in working groups and perform other professional activities independently or under the supervision and the direction of the judge.
In the Republika Srpska we have legal associates in Basic courts, District courts, High Commercial courts, District Commercial courts, Supreme Court of Republika Srpska and Constitutional Court of Republika Srpska. They all are employees of the courts and appointed by the court’s president, after completion of public competition procedure.
o Legal Associates in Basic and District Commercial courts may, upon authorisation and under immediate supervision of the judge, carry out the following proceedings:
§ In the civil proceedings in the small value claims in which the subject matter is monetary claims or damages,
§ In enforcement matters,
§ In non-disputed proceedings, except legal capacity proceedings, dissolution of co-ownership and land borders,
§ In probate proceedings,
§ In misdemeanour proceedings.
When the proceeding is completed, legal associate draft and submits the draft judicial decision to the judge.
o Higher legal associates in District courts, Higher Commercial courts and Supreme Court assist the judge in its work, draft judicial decisions, study legal issues, case law and legal literature, draft legal opinions and perform other professional activities independently or under the supervision and the direction of the judge.
o Legal Advisors in Constitutional Court of Republika Srpska assist judges in their work, analyse legal issues, research legal rules and jurisprudence, prepare draft opinions, judgements, decisions and other relevant acts, prepare reports and analysis and perform other professional activities independently or under the supervision and the direction of the judge.
In Brčko Distrikt we have legal associates in Basic and Appellate courts. They are appointed by Judicial Commission of Brčko Distrikt.
o Legal Associates in Basic Court act and bring the decision independently in certain non-disputed proceedings, enforcement matters and small value claims in civil proceedings assigned by the President.
o Legal associates assist judge in its work, study legal issues in certain cases, draft judicial decisions, keep records of appeals, motions, proposals and requests of the parties and perform other professional activities independently or under the supervision and the direction of the judge.
At the State level, we have legal associates and legal advisors in Court of BiH and Constitutional Court. They all are employees of the courts and appointed by the court’s president, after completion of public competition procedure.
o Legal Associates/advisors in Court of BiH are organized in teams. Each Trial chamber has its own team of assistants that include up to two legal advisors, two legal associates and legal trainee.
§ Legal Advisor coordinates and supervise the work of the team, review all documents in assigned cases, take care about all deadlines, draft judicial decisions, analyse legal issues, jurisprudence and other relevant documents in international law, collect statistic data in cases, prepare reports for judges, etc.
§ Legal Associate assist judges and chamber with case management and preparations for trial, correspond with parties and other services, take notes and records of trial, assist in drafting judicial decisions, prepare reports and memos for judges, etc.
§ Legal trainee study legal issues in the relevant legal field, assist in drafting judicial decisions, assist in case management and preparations for trials, etc.
o Legal Associates in Constitutional Court of BiH drafts reports, elaborates, analysis, notifications and information, analyse appeals under the supervision of Legal Advisor, analyse other disclosures and perform other activities under the supervision of chief of department or the Registrar
o Legal Advisors in Constitutional Court of BiH assist judge in its work, study legal issues, case law and legal literature, draft legal opinions and judicial decisions, participate in court’s sessions, participate in discussions and deliberations and perform other professional activities independently or under the supervision and the direction of the judge.
4. If judicial assistants help in the drafting process, how do they do it?
If Legal assistant is involved in drafting process, usually drafts whole decision or part of it, in accordance with the agreement with the judge or the chamber.
5. Are judicial assistants present during deliberations? If yes, do they participate in the discussion?
Legal assistant who is involved in drafting process is usually present during deliberations. They prepare materials for discussion and in that regard they participate.
6. Are judicial assistants present in hearings? If so, what duties do they have during hearings? Are they allowed to ask questions?
Legal assistants may be present during hearings and in that case they usually take notes and records. They are not allowed to ask questions.
7. Is there a formal rule or an informal consensus among judges, what kind of duties a judicial assistant should and should not undertake?
It depends on judges. Their duties are prescribed by laws, but the scope and way of how they do it depends on informal agreement with judges.
8. Which duties belong exclusively to the judge?
Judge exclusively leads hearings and sessions and in the end brings the decision.
9. How does the work of judicial assistants affect decisions and judicial decision making? How do judges ensure that the decision remains "their"?
It depends on judge. Work of judicial assistant needs to assist the judge, but final decision should be of the judge itself.
10. Is there any official data or - if not - do you have a view how useful judicial assistants actually are e.g. in saving judges’ time?
Their role is very important in saving judges’ time. They do most of the case management, research, analysing and drafting, so judges can focus on deliberations and decision making.
II. Organisation of judicial assistants
11. At which courts in your member State are judges supported by judicial assistants? First instance/second instance/third instance/constitutional court?
At the first instant courts (Municipal courts in Federation of BiH and Basic Court of Brčko District), judicial assistants work autonomously/independently in simple cases and they rarely assist judges.
In Basic courts in Republika Srpska, they work upon authorisation and under immediate supervision of the judge and carry out some proceedings in simple cases (explained above), after which they draft and submits the draft judicial decision to the judge. They rarely assist judges in their everyday work.
At second instant courts (Cantonal courts in Federation of BiH, District courts in Republika Srpska and Appellate Court of Brčko District), some of judges are supported by legal assistants, but definitely not all of them.
At the Entities Supreme courts, some of judges are supported by legal advisers, but definitely not all of them.
At the Entities Constitutional courts, all judges are supported by legal advisers.
At the Court of BiH, all judges are supported by legal staff.
At the Constitutional Court of BiH all judges are supported by legal associates and legal advisors.
12. If there are lay judges in your system, are they specifically supported by judicial assistants?
In proceedings that started after judiciary reform in 2003, we don’t have lay judges. In some “old” cases that started before 2003, we still have some, but they are not supported by legal assistants.
13. How are judicial assistants organised? If there are different forms of organisation at different courts, please explain the different models. For example:
· Are assistants assigned to one judge individually? If so, how many assistants work for each judge?
· Or are they assigned to a panel of judges? If so, how many judicial assistants work for each panel?
· Or are they part of a pool of judicial assistants serving the whole court? If so, what is the ratio judge/judicial assistant?
· Or do they work in teams put together for certain cases? If so, what is the ratio judge/judicial assistant?
Only in Court of BiH and Constitutional Courts in BiH all judges have legal assistants, either assistants assigned to one judge individually or team of assistants assigned to a panel of judges.
In all other courts, legal assistants work for whole court and they assist in cases assigned to them.
14. Who pays them?
They are all paid from Court’s Budget.
15. What is their status? Are they considered as, for example, civil servants, seconded judges or just employees?
It depends in which court they work, as explained above.
Legal Associates in Municipal Courts are elected by HJPC and they are considered as seconded judges.
Legal Associates in Cantonal courts of Federation of BiH, Supreme Court of Federation of BiH and Constitutional Court of Federation of BiH are Civil servants.
Legal Assistants in Republika Srpska, Brčko District, Court of BiH and Constitutional courts of BiH and Republika Srpska are considered as employees of courts.
16. How much do they earn compared to the judges for whom they work? You do not need to indicate exact amounts, but mentioning the proportion between the salaries of judges and assistants would be helpful. For example, how does the salary of a judicial assistant working at a first instance court compare to that of a judge at that court?
At the basic and second level instance, legal assistants earn approximately 50% of salary of the judges at the same court.
At the Supreme courts, Constitutional courts and the Court of BiH, legal assistants earn more than assistants from basic and second level instances, but less than 50% of the judges’ salary.
III. Background and selection of Judicial Assistants
17. Is serving as a judicial assistant a necessary part of the legal education in your member State / a prerequisite for becoming a judge?
It is considered as an advantage (not written), but not as necessary part of legal education. For becoming a judge all legal experience is relevant.
18. What kind of education do judicial assistants have? For example, studies of law, politics, service in the police or military etc., a special education?
For position of judicial assistant, studies of law are necessary.
19. What kind of work experience do judicial assistants have? If they have a legal education, have they qualified for practice? Are they seconded judges? Have they gained practical experience, if so, in what areas?
In order to become a Legal Associate at the first instance courts – one needs to be a graduated lawyer with passed Bar exam and to have a minimum two years of legal experience.
For second instance courts – legal associate needs to be a graduated lawyer with a passed Bar exam and three years of legal experience.
For Supreme and Constitutional courts – Legal advisor needs to be a graduated lawyer with a passed Bar exam and five years of legal experience.
For Court of BiH
o Legal associate – graduated lawyer with minimum one year of legal experience.
o Legal advisor – assistant – graduated lawyer with a passed Bar exam and minimum one year of legal experience after Bar exam.
o Legal advisor – graduated lawyer with a passed Bar exam and minimum three years of legal experience after Bar exam.
For Constitutional Court of BiH
o Legal associate needs to be a graduated lawyer with passed Bar exam
o Legal advisor needs to be a graduated laywer with passed Bar exam and minimum five years of legal experience
20. How are they selected?
They are (mostly) selected in public competition procedure.
21. How long do judicial assistants usually work in that capacity? Just for one or a few months, or years? Or is it a long-term/permanent career?
Legal assistant positions are permanent, so they can do that as long as they want, either as permanent career or as long as it is necessary to apply for judicial or prosecutorial position.
22. If it is a short-term position, what do they do afterwards?
Not applicable.
23. If serving as a judicial assistant is not part of the legal education, why do applicants apply to work as judicial assistants?
Because it is relevant experience and it is considered as an advantage to become a judge or a prosecutor.
24. If being a judicial assistant is a long-term/permanent position, are there opportunities for advancement?
Within the same institution usually not, except in Court of BiH where you can start as a legal trainee and end up as a legal advisor.
IV. Status and regulation of judicial assistants
25. Do judicial assistants swear an oath? Do they wear some form of official dress at certain occasions? E.g. gowns when in court?
Only Legal associates appointed by HJPC swear an oath.
Some Legal assistants wear gowns in court, for example in Court of BiH.
26. Are there formal regulations concerning the status and duties of judicial assistants? if so, is it a statute or internal regulation? If yes, what is regulated by them? Could you provide, as a separate attachment to your answers, the text of the regulation please?
Status and duties of judicial assistants are prescribed either by Laws or by internal regulations of each institution (prescribed status and duties were explained above), but unfortunately the text of them is not available in English or French.
27. Are there informal rules governing the relationship between judge and judicial assistants?
There may be, from time to time, general directions in order to improve work of judicial assistants.
28. Are there any rules - formal or informal - concerning the independence and impartiality of judicial assistants?
B&H Association of court and prosecutor’s professional associates and assistants adopted “Model Code of Ethics for Legal Associates and Advisors in Courts and Prosecutor's Offices in Bosnia and Herzegovina” (text available in English and attached as a separate document)
29. Can judicial assistants in your member State become members of an association of judges or is there a special association for them?
There is B&H Association of court and prosecutor’s professional associates and assistants.
V. General considerations about the support of judges
30. Do you believe that judges in your system would need more or different support by personnel to work effectively? If yes, what kind of support?
It should be more legal assistants in lower level courts, so that more judges have assistants in their work.
31. Are there certain challenges that your member State faces as regards the support for judges which have not been mentioned so far?
The greatest challenge is shortage of resources, so the number of legal assistants is lower than it would be appropriate.
Appendices: