CCJE-BU(2019)1

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.

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

Yes, we have both in Czech

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.

3.         Assistants are organised within judicial section (every judge or panel of judges is considered to be a section) teamwork. Judicial assistant is nominated by concrete judge to support the legal service.

4.         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 Y

·         Discussion with the judge(s) Y

·         Memos with a summary of the facts of a case and the relevant law Y

·         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 Y

·         Memos summarising the facts and the relevant law and including a suggestion if a case should be accepted for appeal/constitutional review Y

·         Drafting parts of the judgment, if so which parts? Facts, certain points under discussion? Y

·         Drafting complete judgments Y

·         Proofreading of decisions, maybe including discussing certain points with the judge/pointing out inconsistencies etc.  Not ussually

·         Reading draft judgments of other judges and discussing them with the judge Not ussually

·         Crosschecking references Not ussually

·         Drafting press releases No

·         Drafting procedural decisions Y

·         Deciding procedural issues such as appointing an expert or deciding on costs of proceedings Y

·         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.  Just procedural issues, no hearings, no taking evidence.Autonomously can make decision like clerks (payment order, enforcement decisions), but ussually don’t have their autonomous agenda.

·         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 Y

-       Preparing the official copies of decisions, preparing decisions for publication Not ussually

-       Collecting statistical data, not ussually

5.         If judicial assistants help in the drafting process, how do they do it?

6.         It depense on concrete condition of collaboration between judge and j.assistant (it is about concrete competence of JA). J.A. can prepare a draft of the final decision, or prepare summary of facts or law suggestion.

7.         Are judicial assistants present during deliberations? If yes, do they participate in the discussion? No. They can discuss with judge after making decision about his reasons, evaluation of fact etc.

8.         Are judicial assistants present in hearings? If so, what duties do they have during hearings? Are they allowed to ask questions? Ussualy not, but only for their own practising.

9.         Is there a formal rule or an informal consensus among judges, what kind of duties a judicial assistant should and should not undertake? There is a lot of possibilities, competence of J.A. is wide (derived from clerk competences),  in law is only negative enumeration (not to hold hearings, not to make some types of decisions -verdicts, etc.)

10.      Which duties belong exclusively to the judge?  See before.

11.      How does the work of judicial assistants affect decisions and judicial decision making? How do judges ensure that the decision remains "their"?

12.      In fact, assistants do ussually decide procedural matters, prepare written draft of decision or prepare all evidence from parties to the hearings. Some types of procedural decisions they can make on their´s own responsibility. Then is possibility for parties to plea to the judge to consider that decision.

13.      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 ?

14.      There were some studies in 2006-2008 making by judicial initiative and it was concluded, that J.A. can save 0,25 -0,33 judge´s work time. That was the reason, why was decided by government to strenghten this support (and to fixate number of judges).

II. Organisation of judicial assistants

15.      At which courts in your member State are judges supported by judicial assistants? First instance/second instance/third instance/constitutional court?

All instances.

16.      If there are lay judges in your system, are they specifically supported by judicial assistants? We have lay judges. But no J.A. support for them.

17.      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?

in courts of first instance is ussual to share one J.A. by two judges, in appeal instance is ussual one J.A. for a panel of judges and in supreme courts is ussual more J.A. per one judge.

18.      Who pays them? Their income is summoned in court budget

19.      What is their status? Are they considered as, for example, civil servants, seconded judges or just employees? Just employees.

20.      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?It is about 25-30%

III. Background and selection of Judicial Assistants

21.      Is serving as a judicial assistant a necessary part of the legal education in your member State / a prerequisite for becoming a judge? Not necessary, but it is a credit practise for judicial exam.

22.      What kind of education do judicial assistants have? For example, studies of law, politics, service in the police or military etc., a special education? Law studies

23.      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? They have no added qualification.

24.      How are they selected? It is a competition on assigned job position.

25.      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?  1-5 years. They can past judicial exam after 3 years of practise and since 30 they can take part in public tender for judge position.

26.      If it is a short-term position, what do they do afterwards?

27.      If serving as a judicial assistant is not part of the legal education, why do applicants apply to work as judicial assistants? Good practise.

28.      If being a judicial assistant is a long-term/permanent position, are there opportunities for advancement? It should be long- term position, but ussually after 30 years JA try to became judges. If not succeed, they have (after passing judicial exam) possiblity to ask Bar Association to be barristers.

IV. Status and regulation of judicial assistants 

29.      Do judicial assistants swear an oath? Do they wear some form of official dress at certain occasions? E.g. gowns when in court? No

30.      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? Only law – clerk competences for J.A. in § 36a zák. č. 6/2002 Sb. (law about judges has an article about status and competences of J.A.)

31.      Are there informal rules governing the relationship between judge and judicial assistants? No

32.      Are there any rules - formal or informal - concerning the independence and impartiality of judicial assistants? If only make their own procedural decision, they are obliged by rules for judicial clerks.

33.      Can judicial assistants in your member State become members of an association of judges or is there a special association for them? They can.

V. General considerations about the support of judges

34.      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? I does work well.

35.      Are there certain challenges that your member State faces as regards the support for judges which have not been mentioned so far? There are discused judicial training conditions in Czech judiciary. F.ex. how increase study conditions or practice for JA, traineeship.

Asistenti soudců vrchních, krajských a okresních soudů

                § 36a

                (1) Soudci vrchního, krajského nebo okresního soudu může být jmenován asistent soudce. Pracovní poměr asistenta soudce vzniká jmenováním a řídí se zákoníkem práce, pokud tento zákon nestanoví jinak.  

 

                (2) Asistenta soudce jmenuje předseda příslušného soudu na návrh soudce, o jehož asistenta se jedná; asistenta odvolává předseda soudu i bez návrhu. Funkce asistenta soudce se považuje za zrušenou, zanikne-li funkce příslušného soudce.

 

                (3) Asistentem soudce může být jmenován bezúhonný občan, který má vysokoškolské vzdělání v magisterském studijním programu v oblasti práva na vysoké škole v České republice. Podmínku bezúhonnosti nesplňuje ten, kdo byl pravomocně odsouzen za trestný čin, pokud se na něj nehledí, jako by odsouzen nebyl.

 

                (4) Asistent soudce vykonává jednotlivé úkony soudního řízení z pověření soudce, pokud tak stanoví zvláštní zákon nebo rozvrh práce.

 

                (5) Asistent soudce je oprávněn podílet se na rozhodovací činnosti soudu v rozsahu stanoveném zvláštním právním předpisem pro vyšší soudní úředníky; na jeho postavení se přiměřeně použijí ustanovení upravující postavení vyšších soudních úředníků.