CCJE-BU(2019)1
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
a. It should be clarified that the answers to this questionnaire are referred to Italy’s “ordinary” judges, i.e. judges dealing with civil and criminal affairs in courts of general jurisdiction (including the Supreme Court of cassation). The answers are applicable in most cases also to “special” jurisdictions, such as administrative courts (including the Council of State), the court of accounts, and military tribunals.
The answers are not referred to judges in the Constitutional Court: the fifteen members of this body - having the tasks of assessing acts of the State and of the Regions as to their conformity to the Constitution, settling possible conflicts between the powers of these institutions, adjudicating possible indictments against the President of the Republic and deciding on the admissibility of referendums to repeal laws - have judicial assistants, who are usually experienced jurists recruited within the judiciary or the academia.
b. After this clarification, the answer to the question is that, in general, at this time Italian judges have still only administrative assistants, with the limited exceptions which will be explained later.
c. Historically, until the 1970’s, the issue of judicial assistance was solved “de facto”: most of Italy’s courts were composed of a single judge (“pretore”) and cases before higher courts were in a limited number. In this situation, in lower courts the judge had staff available for a wide range of tasks and, when necessary, also judicial assistance was provided; in the higher courts a similar situation was created by the fact that the ratio between the number of judges and clerical staff was such as to allow administrative personnel occasionally to be called to judicial assistance.
In the subsequent period, litigation exploded; one-person courts were abolished (in two steps by the law 1 February 1989, n. 30, and the legislative decree 19 February 1998, n. 51); the Judges’ Association - also in view of the development of legal research through IT - started asking for the recruitment of judicial assistants and judicial secretaries answerable personally to each judge, but this met with resistance from labour unions of administrative staff, in favour of keeping a hierarchical scheme of personnel (which could have been disrupted by staff positions in close connection with judges) and refusing both direct answerability to judges of judicial assistants/secretaries and one-to-one work relationships between a judge and a member of the administration. The conflict may be summarized through the names of the opposed organizational models which were then proposed: “ufficio del giudice” (i.e. “the judge’s cabinet”, composed at least of a judicial assistant and a secretary assigned to single judges) vs. “ufficio del processo” (i.e. “office for the monitoring and dealing with judicial proceedings” or “office for the proceedings”, a collective group of persons entrusted with tasks relating to proceedings assigned to groups, and not individual judges; the name will later be used later to mean a different concept, but still excluding direct relationship and answerability to the judge).
d. The suppression of the one-person courts (“pretore”) also determined the attribution to the public administration of some administrative functions that until then had been attributed to the judicial authorities (articles 228 - 232 of the legislative decree n. 51 of 1998). The aim was to concentrate the activity of the judge on the judicial tasks; this aim was in line with the Rec(86)12 of 16 September 1986 of the Committee of Ministers of the Council of Europe concerning measures to prevent and reduce the excessive workload in the courts.
e. Among the reforms envisaged by the government in that period, a mention should be made of the (theoretical) introduction of the position of the “Judicial Assistant” in the 1998-2001 Collective Labour Agreement for employees of the Ministry of Justice. The agreement provided for the identification of 1200 "employees to whom the tasks shall be entrusted, according to directives by each judge, to research legislation, case-law, and academic studies to deal with the relevant issues in the judge’s activity, or to prepare, at his/her request, draft decisions of a simple or standardized nature; such personnel shall be allocated primarily to the labour courts, vulnerable persons’ protection courts, and bankruptcy courts". Unfortunately, the unclear content of this provision and conflicts that arose during implementation prevented this measure from ever being implemented.
f. Subsequently, in order to cope with the serious lack of human resources aiding judges, in some courts (such as Milan and Florence) experimental projects were started to create teams supporting judges (“ufficio del processo” i.e. “office for the proceedings”, in a new understanding of this concept which had already been used earlier).
g. The “office for the proceedings” was then legally established by art. 50 of the decree-law 24 June 2014, n. 90, converted by the law 11 August 2014, n. 114, which added to the decree-law 8 October 2012, n. 179, converted with amendments by the law 17 December 2012, n. 221 - in the section dedicated to digital justice - the new art. 16-octies, under the heading “Office for the proceedings”, providing that:
“In order to guarantee the reasonable duration of trials, through innovative organizational models and by ensuring a more efficient use of information and communication technologies, organizational structures shall be established, to be denominated “office for proceedings”', at courts of first instance or appeals, through the assignment of administrative personnel and the trainees under internships pursuant to Article 73 of the decree-law of 21 June 2013, n. 69, converted, with amendments, by law 9 August 2013, n. 98, or graduates under internships in accordance with article 37, paragraph 5, of the decree-law 6 July 2011, n. 98, converted, with amendments, by law 15 July 2011, n. 111. Auxiliary judges referred to in articles 62 and following of the decree-law of 21 June 2013, n. 69, converted, with amendments, by law 9 August 2013, n. 98, are also members of the office in courts of appeals; honorary judges referred to in Articles 42b and following of the royal decree of 30 January 1941, n. 12 are also members of the office in first instance courts.
The High Council for the Judiciary and the Minister of Justice, within their respective competences, implement the provisions referred to in paragraph 1, within the scope of available resources and without new or greater burdens on public finance”.
The idea that the legislator had was to create a technical structure, also integrated by administrative staff, able to assist the judge in his/her tasks and activities. The mission assigned to these structures is quite varied: research of judicial precedents and academic studies, drafting of reports, summarizing judgments, collaboration with the judge for tasks connected to the preparation and holding of hearings, recording statistical data flows, checking the correct management of computerized registers, and any other support activity for the digitalized civil and criminal proceedings.
h. Within the office for the proceedings, a special role should be played by honorary judges; in particular, "the justices of the peace assist the professional judges” (art. 10, paragraph 10, legislative decree n. 116/2017). Exclusively in civil proceedings, the professional judge can delegate to the honorary judge some instruction activities (for example: hearing witnesses, mediation) and drafting certain decisions. Unfortunately, honorary judges can serve in the “office” only two working days a week.
i. Another component of the “office for the proceedings” are young interns. There are various provisions that allow internships to be carried out within courts.
Among the various provisions one can mention:
1. Art. 16 of legislative decree 17 November 1997, n. 398, according to which practical activities with the university Master’s course for the legal professions (“Scuole di specializzazione per le professioni legali”), subject to agreements or conventions, may also take place in courts;
2. Art. 18 law 24 June 1997, n. 196, and art. 1, paragraph 34, law 28 June 2012, n. 92, which allows university students to carry out training and internships in companies and public administrations;
3. Art. 37 decree-law 6 July 2011, n. 98, converted by law 15 July 2011, n. 111, which allows presidents of courts to conclude internship agreements with the universities and bar associations;
4. Art. 44 law 31 December 2012, n. 247, which allows the carrying out of lawyers’ apprenticeships in courts;
5. Art. 73 decree-law 21 June 2013, n. 69, converted by law 9 August 2013, n. 98, which provides the possibility for law graduates to carry out a period of theoretical-practical training (total duration of eighteen months) in courts of appeal, first instance courts, prosecution offices, penitentiary supervision courts and juvenile courts;
6. Art. 2 decree-law 31 August 2016, n. 168, introducing internships also at the Court of Cassation and the General Prosecutor's Office.
j. Beyond the different contents of the above provisions, the two most relevant internships are those referred to by art. 37 d.l. n. 98/11 and art. 73 d.l. n. 69/13. These trainees assist the judge in carrying out his/her ordinary activities. Trainees have access to the trial files, participate in hearings, including those that are not public, as well as assist in the deliberations, unless the judge deems not to admit them; they cannot have access to the files relating to proceedings in which they are subject to a conflict of interest, including the files relating to the proceedings handled by the lawyer in which they carry out a traineeship.
Trainees cannot exercise professional activity in front of the Court where the internship takes place, nor can they represent or defend, even in the following steps of the case, the parts of the proceedings that took place in front of the judge.
k. The law seeks to incentivize internships pursuant to art. 73 in different ways:
a. providing the allocation to those admitted to a “scholarship” not exceeding € 400.00 (see below), while excluding that the internship entitles the intern to any compensation, social security or insurance status; scholarships, however, are in practice only given to interns from families with low income and, so far, they have not been paid regularly and budget apportionments have been insufficient to cover expectations (see below);
b. providing the possibility for the interns to carry out, together with the internship, other activities, such as attendance of Ph.D. or other post-graduate courses, training preliminary to the bar or notary entry examination;
c. providing that the positive outcome of the internship is calculated to lower from two to one year professional training preliminary to the lawyer or notary entry examination;
d. providing that the positive outcome of the internship constitutes preference, if merit is equal, in the recruitment in public posts in the justice administration, or toward appointment as honorary judge or honorary public prosecutor (appointment for which the internship is also an admission prerequisite, as alternative to other prerequisites).
l. Internships constitute a relevant experience for young law graduates; the current opinion is that their presence, however, does not solve the problems related to judicial assistance, since young graduates remain in the court for a very limited period of time (18 months without the possibility of renewal, so that most of the time is needed to train them); the internship is therefore mainly aimed to provide a training experience for young graduates rather than giving professional support to the judge.
m. In conclusion, Italy at present does not provide for the assistance to the judge by “judicial assistants” as defined in this questionnaire (and referred to in § 65 and conclusion C.6 of CCJE’s Opinion No. 6 (2004), where a stable provision of judges with assistants, with substantial qualifications in the legal field, is envisaged, further stating that the judge should be able to delegate to them, under the same judge's supervision and responsibility, the performance of specific activities such as research of legislation and case-law, drafting of easy or standardised documents, and liaising with lawyers and/or the public).
n. These shortcomings have already been noted in the CEPEJ’s reports, which highlighted the lack of human resources assisting the judge in Italy, compared to other European countries (see below for budgetary aspects).
o. At present, administrative assistance to hearings is usually provided for criminal trials and sometimes for selected civil hearings; this kind of assistance is, as has been mentioned, “administrative” in the meaning of this questionnaire. It is in fact limited to simple drafting of hearings’ minutes. Drafting minutes of hearings, on the other hand, is less and less important, considering that other support tools have been progressively introduced, such as video and audio recording, electronic civil proceedings (“processo civile telematico”, PCT), etc.
p. This description – it is worth repeating - does not apply to the judges of the Italian Constitutional court, who have a stable cabinet consisting of both administrative staff and study assistants recruited among expert academics or judges.
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.
Please see answer to question no. 1.
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
Please see answer to question no. 1, where the fact that Italy has no judicial assistants (except for Constitutional Court judges) is clarified.
4. If judicial assistants help in the drafting process, how do they do it?
Please see answer to question no. 1.
5. Are judicial assistants present during deliberations? If yes, do they participate in the discussion?
Please see answer to question no. 1. One could here note that the issue of presence during deliberation and discussion is addressed by Italian law concerning interns pursuant to art. 73. Those admitted to the internship can access the trial files, take part in the hearings and the deliberation (unless the judge deems not to admit them). Trainees may not, however, have access to trial files when a conflict of interest arises, with particular reference to the proceedings dealt with by the lawyer with whom they carry out the traineeship preliminary to the bar examination. They are bound by secrecy.
6. Are judicial assistants present in hearings? If so, what duties do they have during hearings? Are they allowed to ask questions?
See previous answer.
7. Is there a formal rule or an informal consensus among judges, what kind of duties a judicial assistant should and should not undertake?
See previous answers.
8. Which duties belong exclusively to the judge?
See answer to question no. 1.
9. How does the work of judicial assistants affect decisions and judicial decision making? How do judges ensure that the decision remains "their"?
See answer to question no. 1.
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 ?
See answer to question no. 1.
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?
No answers are provided to questions in this section, for the reasons clarified in question no. 1.
12. If there are lay judges in your system, are they specifically 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?
● Or do they work in teams put together for certain cases? If so, what is the ratio judge/judicial assistant?
14. Who pays them?
15. What is their status? Are they considered as, for example, civil servants, seconded judges or just employees?
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?
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 answers are provided to questions in this section, for the reasons clarified in question no. 1.
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?
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?
20. How are they selected?
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?
22. If it is a short-term position, what do they do afterwards?
23. If serving as a judicial assistant is not part of the legal education, why do applicants apply to work as judicial assistants?
24. If being a judicial assistant is a long-term/permanent position, are there opportunities for advancement?
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 answers are provided to questions in this section, for the reasons clarified in question no. 1.
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?
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?
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?
a. As mentioned in the previous answers, the Italian system does not provide for a stable assistance to the judge as defined in this questionnaire.
b. The recent legislative innovations in the direction of introducing an “office for the proceedings” did not substantially modify this situation, considering in particular that the assistance provided for the professional judges is non-continuous and very limited (since, as said before, internships of young law graduates are for a period of 18 months, without the possibility of renewal, and honorary judges are allowed to work in the courts for just two working days per week in compliance with the principles of temporariness and non-exclusivity of their position). Administrative staff is also usually unavailable for this task and their specifically judicial expertise would be partial.
c. In this regard, it is relevant to mention here Report no. 55/VV/2016 of the Italian High Council for the Judiciary, approved by a Resolution of 18 June 2018. This has been based on the monitoring made by the Council in the year 2016, updated by the new projects concerning distribution of the cases and organization of single courts for the years 2017-2019. The mentioned Report, inter alia, has highlighted some of the limits inherent in the implementation of the “office for the proceedings”.
d. Such limits, with specific regard to the topic of the judicial assistance, can be summarized as follows:
- in the smaller courts it is difficult even to create this kind of structure, considering the lack of human resources, especially concerning internships and administrative staff (this despite the fact that the establishment of the “office” has later become mandatory, according to art. 10 of Regulation no. 1318 of 26 January 2017 of the High Council for the Judiciary [2], as modified on 18 July 2018);
- in most courts interns are less in number than professional judges;
- in most courts less than half of the judges cannot therefore be supported by interns;
- less than half of the honorary judges perform activities delegated by the professional judges, since the majority of them deal with cases that are entirely assigned to themselves;
- in about half of the courts interns have no personal computers nor connection to the network available;
- only one third of the courts in which the “office” has been established improved significantly their efficiency, particularly vis-à-vis duration of the trials, saving of resources and improvement of the quality of the work and of the services to the public.
e. A recent research conducted by the National Association of Judges has shown that only 17,24% of the professional judges can count on honorary judges supporting their activities (see the Report of the National Association of Magistrates at the 33° National Congress of the National Association of Judges, 21 October 2017 [3] ).
f. Furthermore, the Board of the National Association of Judges, in a recent opinion concerning the status of the honorary judges, has stressed that it would be necessary, within the “office for the proceedings”, to provide each judge with a stable figure of judicial assistant, recruited through a general competition, that could support him/her in the exercise of the judicial activity (see Opinion on the reform of honorary judges of 22.04.2017 [4] ).
g. By reference, as a conclusion, to the above opinion:
- in Italy it is still necessary to provide a stable support to the judges from professional figures of judicial assistants;
- such a kind of support should be ensured to all the professional judges;
- it should come from personnel permanently included in the staff of the courts, in order to ensure the necessary level of professionalism and continuity of action of judicial assistants.
[1] In https://csmapp.csm.it/web/csm-internet/norme-e-documenti/dettaglio/-/asset_publisher/YoFfLzL3vKc1/content/ufficio-per-il-processo-esito-del-monitoraggio-sulla-istituzione-e-sul-funzionamento-ruolo-della-magistratura-onoraria-e-diritto-transitorio
[2] “Circolare sulla formazione delle tabelle di organizzazione degli uffici giudicanti per il triennio 2017/2019”
[3] In http://www.associazionemagistrati.it/doc/2769/intervento-di-marcello-basilico-componente-dellufficio-sindacale-anm.htm
[4] In http://www.associazionemagistrati.it/doc/2842/parere-sulla-riforma-della-magistratura-onoraria.htm
31. Are there certain challenges that your member State faces as regards the support for judges which have not been mentioned so far?
a. One of the challenges that could be considered relevant as to support for professional judges concerns the financial resources to recruit judicial assistants.
b. The CEPEJ Study no. 26 on the European Judicial Systems - Efficiency and quality of justice (published in 2018, concerning data of 2016) and the 2018 Justice Scoreboard show that the public budget allocated to the judicial system in Italy (per inhabitant) is higher than the median. Despite this, as mentioned before, Italy does not have a proper figure of judicial assistant for professional judges (except for the judges in the Constitutional Court). This is due to the different distribution of resources in Italy in comparison with other member States.
c. So far, some financial resources in this area have been allocated to internships, as shown in the previous answers. No extra resources have been apportioned for honorary judges and administrative staff in the “office for the proceedings”, since these personnel are funded with their own budget. For interns a “scholarship” has been funded, not exceeding Euros 400,00 per month; but it should be highlighted that the enforcement of this provision depends on the concrete budget allocation each year. In practice, the budget allocation in some cases has not been timely; in some other cases it has not been sufficient to cover the expectations, as mentioned, inter alia, in the above mentioned Report no. 55/VV/2016 of the Italian High Council for the Judiciary.
d. Another challenge to be considered is the attitude of trade unions (starting as back as the 1990’s, not allowing the implementation of the 1998-2001 Collective Labour Agreement for employees of the Ministry of Justice – see answer no. 1): allowing the recruitment of judicial assistants and judicial secretaries, answerable personally to each judge, would create staff positions disrupting the present hierarchical scheme of the personnel.
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Answers to this questionnaire were prepared, and submitted to the IX Committee of the High Council for the Judiciary, by:
- Raffaele Sabato, justice at the Italian Supreme Court of Cassation;
- Gianluca Grasso, judge serving at the Documentation Office of the Italian Supreme Court of Cassation;
- Nicoletta Aloj, judge serving at the Court of Turin.