RESPONSE FROM FINLAND
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.
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
a) There are various kinds of administrative assistants as defined for the purpose of the questionnaire in all courts in Finland. They are usually organized as separate units (e.g. administrative office, registry office or a separate secretarial unit). In the smallest courts there may not exist any separate units for them and the tasks in question may be taken care of by only a few such assistants. Such staff may also work as personal secretaries of judges (this is common in district courts).
The administrative assistants usually do not have legal education although in some cases they may have taken a law degree of a lower level (a kind of a degree which does not qualify you for a judge). They work for example with receiving documents from the clients of the court, organizing court files, taking care of various kinds of preparative correspondence with the clients of the court and copying and (technically) preparing the official versions of the court decisions. The ones who work as personal secretaries of the judges or in separate secretarial units usually have a role in the technical side of writing the decisions of the court (the contents of which is – of course – the responsibility of the judges) or writing protocols in the court hearings.
b) There are also various kinds of judicial assistants in Finnish courts.
First of all, we have in Finland a system of a general court apprenticeship. For this purpose district courts have special positions of court trainees (so called court notaries) who mainly work there for one whole year. Alternatively they may work in a district court for half a year after which they switch either to a court of appeal or to an administrative court where they serve the other half of the year. Their work in district courts consists mostly of independently deciding on lesser cases (their competence is much more limited than that of a judge). A part of their work may however consist of preparatory work done for the judges or sitting as one member in three-judge-panels. In courts of appeal and administrative courts their work consists of that of the referendaries or draftpersons.
In the two supreme courts (the Supreme Court and the Supreme Administrative Court), courts of appeal, administrative courts and two of the three special courts (the Labour Court and the Insurance Court) there are judicial assistants called referendaries who act as a kind of assistant judges (but are not part of the panel of judges which decides on the case). In the third special court, the Market Court, these judicial assistants are called draftpersons and they have more limited powers than referendaries.
The concrete tasks of refendaries depend, in addition to the legislation, also on the standing orders of each court. The referendaries in the two supreme courts are mostly very independent in their work whereas e.g. the referendaries in the courts of appeal work much more under the supervision of judges responsible for each case. The concrete independence of the referendaries in the courts of appeal varies quite a bit from court to court and depends also on the type of the case. In cases that dealt with without oral hearing they are allowed to utter an official dissenting opinion if they disagree with the decision of the panel of judges. By contrast, in cases where there is an oral hearing the referendaries act as draftpersons which means that they may be involved in drafting the decision of the court but may not utter a dissenting opinion. In the preparation to an oral hearing they work under the guidance of the judge in charge of the case and their overall level of independence can be described to be lower than in cases that are dealt with in the written proceedings.
As mentioned above, in the Market Court there are no referendaries, only draftpersons.
In the year 2017 a special system of judicial training for the purposes of becoming judge was introduced in Finland. For the purposes of this system there are fixed-term (normally three years) positions of assessors (i.e. judge trainees) in courts of appeal, administrative courts and special courts. An assessor has the status of a (fixed-term) judge. There are however, some elements in assessors' work that resemble the work of a referendary. The assessors for instance usually do themselves the preparatory work for which judges otherwise can use referendaries or draftpersons. As assessors are essentially judges references to them are only sporadically made in the following text.
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.
The rationale for employing assistants in general is to make the work-load of judges lighter and to enable them to concentrate on their adjudicative work. Employing judicial assistants serves also educational purposes.
Concerning the court notaries the above-mentioned educational purposes are not limited to initial training for future judges. The vast majority of those who serve their term as court notaries will have a career outside the courts. They may become for instance prosecutors or practising lawyers but a lot of them will have careers completely outside the justice system. The court apprenticeship gives court notaries a good insight in the work in the courts and is generally deemed as useful work-experience for anyone working in legal profession.
The referendaries and draftpersons in the courts of appeal, administrative courts and special courts have a concrete possibility to career as a judge. One of the main goals in serving as referendaries or draftpersons is to acquire knowledge and experience needed in the position of a judge. Before founding the judicial training system for assessors the main route to becoming a judge was through serving as referendaries or draftpersons in courts of appeal, administrative courts or special courts. It remains to be seen how the experience as a referendary or a draftperson will in the future be evaluated in the appointments for the judges' positions.
The positions as referendaries in the supreme courts have traditionally been seen as serving as an advanced training for future judges although a considerable part of referendaries have served all or almost all of their career as referendaries. In the recent years, however, more and more of the referendaries of the supreme courts have sought for and been appointed to positions as judges. Especially during the last ten years judges in lower courts have sought positions as fixed-term referendaries in the supreme courts in order to gain valuable knowledge and experience that can be of help in advancing their careers within the judiciary.
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:
In short it can be stated that the judicial assistants take care of almost all of the below-mentioned tasks in Finnish courts. The extent to which they perform each task varies a lot depending on which kind of a judicial assistant is in question (referendary, draftperson or court notary) and on the court the judicial assistant in question is working in. Differences in this respect occur also in the courts of the same kind due to the fact that there is variance in the standing orders and established practices of the courts (e.g. there are differencies in the standing orders of the courts of appeal, of which there are five in Finland).
· Research, maybe summarised in a memo
Typically belongs to duties of a referendary and a draftperson. May also be a duty of a court notary if s(he) is preparing the case for a judge or a panel of judges.
· Discussion with the judge(s)
All kinds of judicial assistants.
· Memos with a summary of the facts of a case and the relevant law
Typically belong to duties of a referendary and a draftperson. May also be a duty of a court notary if s(he) is preparing the case for a judge or a panel of judges.
· 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
Typically belong to duties of a referendary.
· Memos summarising the facts and the relevant law and including a suggestion if a case should be accepted for appeal/constitutional review
Typically belong to duties of referendaries of the supreme courts.
· Drafting parts of the judgment, if so which parts? Facts, certain points under discussion?
Typically belongs to duties of referendaries and very often to duties of draftpersons. The referendary drafts the whole judgment whereas a draftperson may draft either the whole judgment or some parts of it depending on the wishes and instructions of the panel of judges. In general it can be said that a referendary works rather independently albeit taking into account possible instructions from the panel of judges. A draftperson is more of “a helping hand” and usually works under guidance of the judge responsible for the case or the whole panel of judges when drafting the judgment or parts of it.
· Drafting complete judgments
See answer to the previous question.
· Proofreading of decisions, maybe including discussing certain points with the judge/pointing out inconsistencies etc.
Typically belongs to duties of a referendary or a draftperson.
· Reading draft judgments of other judges and discussing them with the judge
May belong to duties of court notaries. Referendaries and draftpersons are typically not obliged to be involved in matters which they themselves have not been preparing for the judges.
· Crosschecking references
Typically belongs to referendaries and draftpersons.
· Drafting press releases
Typically belongs to judges. Referendaries and draftpersons may also be utilised in drafting press releases. This may be more common in the supreme courts.
· Drafting procedural decisions
Typically belongs to referendaries and draftpersons.
· Deciding procedural issues such as appointing an expert or deciding on costs of proceedings
Belongs to judges only (and to court notaries in cases which they handle on their own or as members of three-judge-panels). Referendaries and draftpersons may decide on the court fees but not on the compensation of costs between the parties.
· 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.
Court notaries are entitled to hear simple civil and criminal cases autonomously. The limits are defined in the Judicial Apprenticeship Act (paragraphs 14 – 16). Court notaries hearing cases within their competence act under the same rules of responsibility as judges. They are not obliged to negotiate about their decisions with judges, although this may very often be advisable.
· In addition to tasks such as those mentioned above, judicial assistants may also perform administrative duties such as:
- Writing protocols in hearings
Typically a duty of court notaries, referendaries and draftpersons.
- Organisation of files
Typically belongs to duties of secretaries or administrative assistants, up to a point (usually in initial stages of archiving the files) also to court notaries, referendaries and draftpersons.
- Correspondence with parties
Typically belongs to duties of court notaries (mainly in their own cases, seldom when they are members of three-judge-panels), referendaries and draftpersons, quite often to secretarial staff.
- Preparing the official copies of decisions, preparing decisions for publication
The official copies of decisions are usually prepared by secretarial staff or administrative assistants. Preparing decisions for publication may belong to referendaries and draftpersons.
- Collecting statistical data
Belongs to administrative staff.
4. If judicial assistants help in the drafting process, how do they do it?
They usually write a draft to a decision either independently (especially drafting the decision as a referendary) or following the guidelines given by a single judge (the judge responsible for the case) or a panel of judges.
5. Are judicial assistants present during deliberations? If yes, do they participate in the discussion?
This is at least the general rule. In cases where they act only as draftpersons they may not be present during deliberations. If they are present and act as referendaries they participate in the discussion. If they are present but act as draftpersons only they do not necessarily participate in the discussion although they certainly have a chance to comment on the discussion of the judges.
6. Are judicial assistants present in hearings? If so, what duties do they have during hearings? Are they allowed to ask questions?
Usually they are present, although not necessarily. If they are, they usually write the protocol of the hearing and take care of the technical side of the proceedings, e.g. the taping of the accounts of the parties and witnessses. The questions in the hearings are usually asked by the presiding judge and judicial assistants are able to have their relevant questions asked by the presiding judge. On the approval of the presiding judge they may have an opportunity to ask their questions themselves although this is not a very common practice.
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 may be formal rules in standing orders of the courts in addition to the fact that in legislation certain duties and competencies are reserved for judges only. However, the duties of a judicial assistant depend to a large extent on the internal practices of the court in question, which practices may be documented in e.g. special internal guidebooks of the court. The limits to their factual duties and competencies are also set by these practices.
8. Which duties belong exclusively to the judge?
The duties which include actual judicial decision making can be described to belong exclusively to judges.
9. How does the work of judicial assistants affect decisions and judicial decision making? How do judges ensure that the decision remains "their"?
All the preparatory work, e.g. finding the relevant precedents of the supreme instance or the important decisions by the lower courts and research in the judicial literature are important for the decision making of the judges. If and when a judicial assistant drafts the decision (either as a referendary or as a draftperson) his/her work may either have a considerable influence on the contents and even the wording of a decision or by contrast not be seen in any way in the final decision of the court. This depends very much on the quality of the draft and also to a certain extent on the individual panel of judges for whom the draft is written.
If judges are not content either on the outcome proposed in the draft or the wording of the draft they are of course entitled to leave the whole draft without notice and write the decision in its entirety by themselves. The work-load of the judges may (at least in certain cases) have an influence on to how large an extent they are willing to rewrite the draft if they agree on the proposed outcome. However, when the judges accept the draft (either as such or revised to a larger or lesser extent) they of course take on them the responsibility for the decision such as it is in its final form.
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 ?
There is no available data on this. The usefulness of an judicial assistant depends very much on the personal abilities and experience of the assistant in question. This depends also to a large extent on what kind of cases the judicial assistant is involved with. Generally speaking the work of a judicial assistant saves a considerable amount of the judges' time in cases with a lot of documented evidence and/or a lot of witnesses whose accounts must be written down in the decision. Another group of cases where the same assesment of their value can be made are judicially difficult cases where an extensive research in especially to find relevant court decisions and judicial literature is needed.
Generally speaking the standard and usefulness of the referendaries of the supreme courts is at a very high level. In lower courts the referendaries and draftpersons are in many cases so inexperienced that despite their best efforts their work does not ease the work of the judges in a similar way, although there are a lot of very competent and able referendaries and draftpersons in the lower courts too.
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?
In all courts. In district courts the assistance is rather limited. This depends on one hand on the inexperience of the court notaries and on the other hand on the fact that the court notaries mainly concentrate on deciding independently on the cases which fall into their competence as set by the procedural laws.
12. If there are lay judges in your system, are they specifically supported by judicial assistants?
There are lay judges in district courts in certain criminal cases. However, they are not supported by judicial assistants. Lay judges are advised both on the points of law and on the questions relating to evaluation of evidence by the presiding judge, or if there are two professional judges in the panel, possibly by both of them.
13. How are judicial assistants organised? If there are different forms of organisation at different courts, please explain the different models. For example:
Judicial assistants may be organised in different ways. Concerning referendaries and draftpersons, see below. Court notaries in district courts are usually organised as a separate unit within the court or, in the biggest courts, within the department/division of the court.
· Are assistants assigned to one judge individually? If so, how many assistants work for each judge?
No, or at the most extremely seldom.
· Or are they assigned to a panel of judges? If so, how many judicial assistants work for each panel?
They may be assigned to a panel of judges. If so, the number of assistants working for each panel varies a lot from court to court and depends very much on the resources of the court. The ratio may for example be two assistants working for three or four judges.
· Or are they part of a pool of judicial assistants serving the whole court? If so, what is the ratio judge/judicial assistant?
In smaller courts the judicial assistants may serve the whole court or a whole department/division of the court if the court is divided into such units.
· Or do they work in teams put together for certain cases? If so, what is the ratio judge/judicial assistant?
In very large cases there may be two judicial assistants assigned to a case. If so, the ratio is typically two assistants working for three judges.
14. Who pays them?
They have permanent or fixed-term (time bound) offices and are paid by the state (like judges are).
15. What is their status? Are they considered as, for example, civil servants, seconded judges or just employees?
The judicial assistants who work as referendaries are a sort of assistant judges although they are not part of the panel of judges which decides on the case. The referendaries of the supreme courts also enjoy a permanency of office comparable to that of the judges (which is stronger than the permanency of office of other - “normal” - civil servants or, if you like, public officials). Otherwise their relationship to the employer (the state) is arranged in a similar way as that of the other civil servants. The status of the draftpersons is somewhat weaker insofar that they are not entitled to a dissenting opinion in any kind of cases. Their rights as an employee are equivalent to those of the referendaries of courts of appeal, administrative courts and special 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?
Salaries of all judicial court personnel (exluding justices of the supreme courts) are formed by a basic salary and additions depending on the years of experience. This makes the comparisons more difficult.
The salaries of the court notaries in district courts (assuming that they have not any previous experience) are under 45 % of the salaries of a typical junior judge and only about 35 % of the salaries of a typical senior judge. In courts of appeal the salaries of the referendaries (in the beginning of their careers) are a little less than 70 % of the salaries of a typical junior judge and a little less than 60 % of the salaries of a typical senior judge. In the supreme courts the salaries of the referendaries vary between the levels of salaries of junior and senior district court judges but are only from under 50 % to under 60 % of the salaries of justices of the supreme courts.
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?
Serving as court notary is in practice a prerequisite (although not a formal requirement) for becoming a judge in a district court and a court of appeal. It is possible to be appointed as a judge in an administrative court or a special court without having served the court apprenticeship (as a court notary). In the supreme courts there are also judges who haven't served the court apprenticeship.
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 degree in law 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?
The work experience of the judicial assistants varies a lot. The rule is that the court notaries in district courts are at the beginning of their careers in legal profession. However, there are notable exceptions to this rule. The referendaries of the supreme courts are often quite experienced legal professionals , maybe with background as referendaries in courts of appeal or administrative courts, junior judges in district courts or prosecutors.
20. How are they selected?
The court in question (i.e. the chief judge of the court) decides on the recruitments of judicial assistants.
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?
A court notary works for one year, either the whole year in a district court or half of the term in a district court and another half in a court of appeal or an administrative court.
In the courts of appeal, administrative courts and special courts the variation in the lengths of the terms of referendaries and draftpersons is wide ranging from a few months to several years, even well over ten years. The long-time referendaries will usually at some point be appointed as judges in their own courts or (mostly court of appeal referendaries) in district courts. In the supreme courts the referendaries may even have permanent careers inside their courts.
22. If it is a short-term position, what do they do afterwards?
Those who serve only a short term as referendaries may switch on to e.g. prosecution service, advocacy or service in government ministries or as company lawyers. Some of the short-term referendaries are lucky enough to get appointment to a position as a judge.
23. If serving as a judicial assistant is not part of the legal education, why do applicants apply to work as judicial assistants?
Serving as a judicial assistant provides a young lawyer with a good insight into courts and useful experience from which (s)he can benefit in later career in the legal profession. Rather many former referendaries in courts of appeal have later had succesful careers in advocacy.
24. If being a judicial assistant is a long-term/permanent position, are there opportunities for advancement?
Referendaries have – or at least until now have had – good chances to be appointed as judges. For the referendaries in the supreme courts these chances have been even better, and the introduction of the new assessor system is not likely to change this situation.
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?
Yes, they do. There are no form of official dresses in the Finnish courts, with the exception of gowns used in certain district courts in ceremonies of civil weddings.
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?
The status of judicial assistants is defined in legislation by the Public Officials Act (that regulates the status of public officials in general) and the Courts Act. The standing orders of the courts include provisions about the duties of judicial assistants that serve in the respective courts.
An unofficial translation of the Courts Act is attached. For the purposes of this question especially relevant is Chapter 19 (”Other personnel”) that concerns e.g. judicial assistants (referendaries, draftpersons and court notaries).
27. Are there informal rules governing the relationship between judge and judicial assistants?
The meaning of the question is not quite clear. Of course all the rules concerning appropriate conduct towards coworkers apply to this relationship, as well as to relationships between all groups of personnel. There are certainly also established informal practices relating to roles of the judges and the judicial assistants in courts and these practices may vary from court to court. It is however difficult to give any detailed answer to a question that is so generally formulated.
28. Are there any rules - formal or informal - concerning the independence and impartiality of judicial assistants?
The same rules of impartiality apply to the judicial assistants as to the judges. The judicial assistants may be recused on the same grounds as the judges.
29. Can judicial assistants in your member State become members of an association of judges or is there a special association for them?
Yes, they can become members of the member associations of the Finnish Association of Judges. The justices in the supreme courts have an association of their own. That association is not a member association of the Finnish Association of Judges and it does not accept referendaries in the supreme courts as members.
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?
The judges would certainly need more support in technical issues, e.g. support in matters relating to computers and IT in general. The number of judicial assistants should remain at least at the current level.
31. Are there certain challenges that your member State faces as regards the support for judges which have not been mentioned so far?
The official policy of several recent governments has been to reduce the number of state employees. This has been manifested also in the development of the number of all kinds of supporting personnel in Finnish courts. This applies as well to the judicial assistants as to the administrative assistants and to other administrative personnel. This has led to a situation where the judges have had to take responsibility for tasks of technical or at least not directly adjudicative nature which in turn has meant that they have less and less time for the core of their work i.e. judging.