CCJE-BU(2019)1

Answers from Denmark

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 Yes, throughout the Danish court system.

b) by judicial assistants Yes, but only in the Supreme Court.

Functions as a judge are in the District courts exercised also by deputy judges. Formally they are not judges, but when sitting as a judge they enjoy the constitutional independence of a judge in so far as they shall obey the law only, and they are given a certain protection against arbitrary removal. They have a legal education and they cope with in particular enforcement, probate and bankruptcy cases. They can also handle minor civil and criminal cases. When sitting in court they are sitting as a sole judge, not as a judicial assistant for an appointed judge, and their functions will for that reason not be commented further.

In the two High courts deputy judges can participate as one of the three judges hearing a case. This is an important part of the education and evaluation of deputy judges, but as they participate in each particular case on equal foot with the two appointed judges and not as a judicial assistant, there will be no further comments on their functions either.

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: delegating routine tasks to staff with lesser education. Judicial assistants: to enable The Supreme Court to work more efficiently.

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

Yes to all of the above duties.

·         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

-       Organisation of files

-       Correspondence with parties

-       Preparing the official copies of decisions, preparing decisions for publication

-       Collecting statistical data

No to all of the above duties. If   witnesses have to be heard before the hearing of a civil case in the Supreme Court a judicial assistant can precede the oral hearing of the witnesses and write the protocol of this hearing.

4.         If judicial assistants help in the drafting process, how do they do it? They prepare a draft, occasionally after having discussed the case with a Supreme Court judge.

5.         Are judicial assistants present during deliberations? If yes, do they participate in the discussion? Yes, they are present, but they do not participate in the discussions.

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 in hearings.

7.         Is there a formal rule or an informal consensus among judges, what kind of duties a judicial assistant should and should not undertake? No.

8.         Which duties belong exclusively to the judge? It is entirely the duty and responsibility of Supreme Court judges to decide a case.

9.         How does the work of judicial assistants affect decisions and judicial decision making? How do judges ensure that the decision remains "their"? The work of judicial assistants is believed to support the quality and efficiency of the work of the Supreme Court. It is entirely the duty and responsibility of Supreme Court judges to decide a case.

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.

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? Only at the Supreme Court.

12.      If there are lay judges in your system, are they specifically supported by judicial assistants? There are lay judges in Danish courts but not in the Supreme Court. Lay judges 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?  No.

·         Or are they assigned to a panel of judges? If so, how many judicial assistants work for each panel?  No.

·         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 ratio is approximately two Supreme Court judges to one judicial assistant.

·         Or do they work in teams put together for certain cases? If so, what is the ratio judge/judicial assistant? No.

14.      Who pays them? Government.

15.      What is their status? Are they considered as, for example, civil servants, seconded judges or just employees? Their title is “dommerfuldmægtig (deputy judge)”.

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? The salary of a “dommerfuldmægtig” at the Supreme Court is approximately one third of that of a Supreme Court judge.

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.

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? A university law degree is required.

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? They generally have several years of working experience. They come from diverse backgrounds in law practice, ministries or other courts, where they have worked as a deputy judge.

20.      How are they selected? The selection process involves submission of application, interview, and evaluation of their qualifications.

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? Two to three years.

22.      If it is a short-term position, what do they do afterwards? They are entitled to move into another job at the courts. Some get employment with other employers.

23.      If serving as a judicial assistant is not part of the legal education, why do applicants apply to work as judicial assistants? It is presumably because of the learning experience, it is considered to be meriting, and may advance their career.

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 a judicial assistant, who has done a good job, will often have improved his or her possibilities of becoming a judge.

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? They do not swear an oath. They wear a judge’s gown when in court room and deliberation room.

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? No.

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

28.      Are there any rules - formal or informal - concerning the independence and impartiality of judicial assistants? Yes. The same rules apply as those for appointed judges.

29.      Can judicial assistants in your member State become members of an association of judges or is there a special association for them? They can not become member of the Danish Association of Judges (dommerforeningen) but may enter the Danish Association of Deputy Judges (dommerfuldmægtigforeningen).

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?
Yes. Court staff has been reduced in later years as a consequence of rationalizations due to digitalisation. The Danish judiciary to day have to cope with too many administrative and practical duties, which leaves it with lesser time for the judicial work.
Particularly concerning comprehensive cases there could be a need for access to help from judicial assistants in all courts.

31.      Are there certain challenges that your member State faces as regards the support for judges which have not been mentioned so far? No.