Strasbourg, 7 January 2019
CONSULTATIVE COUNCIL OF EUROPEAN JUDGES (CCJE)
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.
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 – yes, in all courts;
b) by judicial assistants – yes, but not in all courts - there might be judicial assistants at the courts should Supreme Judicial Council (SJC) Judges College decide so on the basis of the workload level of the respective judiciary body. At present judicial assistants are working at the Supreme Court of Cassation, the Supreme Administrative Court, the Constitutional Court – and at administrative, appellate and first instance courts with high workload level.
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.
Administrative assistants provide judges administrative support. They work on the organisation of files, correspondence, communication with parties/checks/providing information on various procedural issues, preparation of decisions/orders/judgements official versions, collecting documents and statistical data.
Judicial assistants support judges in their adjudicative work. They are assigned tasks as legal research, summary of case-law and opinions in the legal doctrine, preparing memos/summary of facts, drafting judicial instruments. Their work allows judges to save time and concentrate on more complex issues/deliver decisions in shorter terms. On the other hand it provides valuable experience in that field and is often seen as a step to judge’s career.
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 - yes
· Discussion with the judge(s) – yes - as far as needed for dealing with the task assigned and following the instructions of the judge in charge
· Memos with a summary of the facts of a case and the relevant law - yes
· 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 - no
· Memos summarising the facts and the relevant law and including a suggestion if a case should be accepted for appeal/constitutional review - no
· Drafting parts of the judgment, if so which parts? Facts, certain points under discussion?- yes (see answer to question N.4)
· Drafting complete judgments - yes
· Proofreading of decisions, maybe including discussing certain points with the judge/pointing out inconsistencies etc. - no
· Reading draft judgments of other judges and discussing them with the judge - no
· Crosschecking references -no
· Drafting press releases - no
· Drafting procedural decisions -yes
· Deciding procedural issues such as appointing an expert or deciding on costs of proceedings -no
· 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 - no.
· In addition to tasks such as those mentioned above, judicial assistants may also perform administrative duties such as:
- Writing protocols in hearings - no
- Organisation of files - no
- Correspondence with parties - no
- Preparing the official copies of decisions, preparing decisions for publication - no
- Collecting statistical data – no
4. If judicial assistants help in the drafting process, how do they do it?
Judicial assistants carry out comparative legal research in a specified matter, assigned by a judge, administrative head or deputy administrative head, draft summary of the facts and relevant law memos, draft orders/decisions/parts of judgements (usually factual ones)/judgements (more rarely-prevailingly of not complex/repetitive cases with well-established case law) – after discussion with and following the instructions of the judge in charge. Even in case they draft the entire decision/judgement, it is the judge in charge who decides whether to use the draft or not, to redraft or to edit it until the final text fits his/her understanding and ruling in the case. Judicial assistants shall draft only if a judge assigns them a case (not all cases of the judge). In fact in all courts several judges share one judicial assistant and usually the number of cases which could be assigned is established in internal rules, issued by the President of the respective court (ex. at the Supreme Court of Cassation, following the internal rules, one judicial assistant shall help up to three judges and shall be assigned no more than 3 cases per week/14 cases per month). Judicial assistants shall also draw up opinions on letters and alerts concerning legal matters received at the court and assist the administrative heads and the chairpersons of divisions upon the institution of cases.
5. Are judicial assistants present during deliberations? If yes, do they participate in the discussion?
6. Are judicial assistants present in hearings? If so, what duties do they have during hearings? Are they allowed to ask questions?
No, they are not present (if they are interested in a case, they can attend an open public hearing just as anyone else can do it).
7. Is there a formal rule or an informal consensus among judges, what kind of duties a judicial assistant should and should not undertake?
There are formal rules – in law /Judiciary System Act (JSA)/ and in Internal Presidents of Courts Rules - which outline judicial assistants’ duties.
8. Which duties belong exclusively to the judge?
It is within the exclusive judges’ competence to preside hearings/sit in a panel, to decide the case/participate in panel deliberations and decide the case, to write/decide which is the final version of a decision/judgement and sign it.
9. How does the work of judicial assistants affect decisions and judicial decision making? How do judges ensure that the decision remains "their"?
Judicial assistants are prevailingly involved in the stage when preparation of the decision making is conducted – as far as the main part of their work consists in research and finding relevant case law/preparing memos and summaries/drafting decisions in repetitive not complex cases with well-established case law. It’s judges’ responsibility to hold a hearing (presiding it or sitting in a panel), to examine the case, to admit and evaluate evidence, to decide which facts have been established and to apply the relevant law – thus deciding on the outcome of the proceedings /following deliberations within (and only) the members of the panel/. Judicial assistants cannot affect the decision making process. Even when they are assigned the drafting of a decision/judgement or parts thereof, they are following the instructions of and the decision taken by the judge/panel in charge. However, their draft is later corrected by the judge reporter who in most of the cases gives own reasoning.
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?
No statistical data - but judicial assistants facilitate judges’ work and make it more productive and speedy.
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? - see answer to question N.1
12. If there are lay judges in your system, are they specifically supported by judicial assistants?
There are lay judges but they are not supported by judicial 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? – Yes – the organisation of the assistants is set in the internal rules of the President of the respective court; it’s different for the different courts and depends on the number of the judges, the number of the assistants, the special temporary needs of certain judges to be assisted (for example because of a large backlog cases), etc.
· Or do they work in teams put together for certain cases? If so, what is the ratio judge/judicial assistant?
14. Who pays them?
The court at which they work.
15. What is their status? Are they considered as, for example, civil servants, seconded judges or just employees? – servants (they don’t have magistrates’ status)
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?
Judicial assistants shall receive basic monthly remuneration amounting to 90 per cent of the basic remuneration for the lowest judicial position.
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?
No. The law (Judiciary System Act, Art.294) provides that holders of a university degree in law shall be licensed to practise law after a six-month internship as legal interns and sitting for an examination – but the intern position is totally different from the judicial assistant position.
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?
University degree in lawis a must.
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?
Eligibility for appointment as a judicial assistant shall be limited to persons who meet the Article 162 JSA requirements for becoming judges - i.e. persons who hold Bulgarian citizenship only and: hold a university degree in law; have undergone the internship provided in Judicial System Act and is licensed to practise law; possess the required moral integrity and professional standing complying with the Code of Ethical Conduct of Bulgarian Magistrates; have not been sentenced to deprivation of liberty for an intentional criminal offence, notwithstanding any subsequent rehabilitation; are not elective member of the Supreme Judicial Council who have been released from office on disciplinary grounds for damaging the prestige of the Judiciary; do not suffer from a mental illness - and who have successfully passed a competition for a judicial officer. Work experience is not required – but, as already mentioned, judicial assistants have to be qualified for practice (see answer to question N.17). They are not seconded judges.
20. How are they selected?
Judicial assistants shall pass successfully a competition. The recruitment procedure is organised by the court at which the assistants will work. Usually there is a written exam/test and an interview carried out by a competition commission. Candidates shall be appointed in the order of the ranking thereof by the competition commission. Judicial assistants shall be appointed by the administrative head of the respective court.
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?
There is no term of office prescribed by law – so it could be a long term or permanent career. Usually judicial assistants work in that capacity for several years. The position is very attractive for young lawyers as it provides valuable experience and is often seen as a starting point of a judicial career and a step towards judges’/prosecutors’ positions (judicial assistants usually later apply in judges’ and prosecutors’ competitions). In practice the number of the judicial assistants who permanently remain at that position is not large.
22. If it is a short-term position, what do they do afterwards? - see answer to question N.21
23. If serving as a judicial assistant is not part of the legal education, why do applicants apply to work as judicial assistants?
The position of the judicial assistant is attractive because of the valuable experience it provides; thesalary is also acceptable, especially for young lawyers.
24. If being a judicial assistant is a long-term/permanent position, are there opportunities for advancement?
A judicial assistant can’t advance as such, but the position increases the chances of becoming a judge because of the valuable experience and practical skills it provides.
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?
No, judicial assistants don’t swear an oath and don’t wear official dresses. However, according to law (Art.246b JSA) they shall be bound to keep as official secret the information of which they have become aware in the course of their work and which affects the interests of citizens, legal persons, the administrative authorities and the State; they shall not have the right to give legal advice and opinions to the parties, to the procedural agents thereof or to third parties in connection with the official work thereof; when discharging the official duties thereof and in public life, judicial assistants must behave in conformity with professional ethics and not damage the prestige of the Judiciary.
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?
There is a special section in Judiciary System Act dedicated to judicial assistants. It mainly regulates eligibility, appointment, duties and obligations, remuneration (see the Appendix). The law also prescribes that the Labour Code shall apply to matters that have not been provided for in the section and that administrative heads of courts shall endorse and publish on the website of the respective judicial authority rules of organisation of the operation of judicial assistants. These rules contain information about distribution of judicial assistants among judges (how many judges shall be assisted by one judicial assistant), tasks/total number of cases which shall be assigned per week/month, evaluation and accountability, duties and obligations, leave.
27. Are there informal rules governing the relationship between judge and judicial assistants?
28. Are there any rules - formal or informal - concerning the independence and impartiality of judicial assistants?
No rules concerning independence. There are rules (Art.246b JSA) according to which judicial assistants shall be bound to keep as official secret the information of which they have become aware in the course of their work and which affects the interests of citizens, legal persons, the administrative authorities and the State; they shall not have the right to give legal advice and opinions to the parties, to the procedural agents thereof or to third parties in connection with the official work thereof; when discharging the official duties thereof and in public life, judicial assistants must behave in conformity with professional ethics and not damage the prestige of the Judiciary.
29. Can judicial assistants in your member State become members of an association of judges or is there a special association for them?
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?
In general judges need more support. As stated in 2017 Courts Activity Annual Report the support of judges has to be improved, including by increasing the number of judicial assistants and by changes in the concept of allocation of tasks between judges and assistants; some courts are still overloaded, others (although few) lack enough space, courtrooms and judges’ offices; information and technical support can also be improved. Similar conclusions are drawn by SJC Judicial Administration Commission which has proposed increasing the number of specialized administration servants (including judicial assistants - who are mostly needed, information security servants, press attaches) and changes in the judicial assistants concept with respective legislative amendments.
31. Are there certain challenges that your member State faces as regards the support for judges which have not been mentioned so far?
In February 2019 (following SJC Judicial Administration Commission proposal - based on judges’ workload and possible reforms to ensure efficiency of justice analysis) Supreme Judicial Council Judges Colleges adopted a decision a new concept about the role and the functions of the judicial assistants to be elaborated. The aim is reallocation of tasks between judges and well-trained administration in order to relieve judges from elementary but time consuming activities. One of the ideas is to delegate judicial assistants administration of cases functions, which could not be appealed against (ex. exchange of documents and notifications, archiving cases) – thus allowing judges to concentrate on their real adjudicative work– to assess the regularity of an action/appeal lodged, to admit evidence and schedule a hearing, to hold a hearing, to decide on the outcome of the case/deliver a decision/judgement. The future changes shall be subject to discussion among judges and SJC working group to summarize the results and propose legislative amendments shall be appointed.