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.  

The following response was issued by the Lithuanian representative

In Lithuania there is both the common courts system and the administrative courts system. The common courts system consists of 22 local courts (first instance courts), 5 regional courts (first instance and appeal instance), the Court of Appeal of Lithuania (only appeal instance.) and the Supreme Court of Lithuania. The administrative courts system consists of the Supreme administrative court and 2 regional courts.

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

The president of the Supreme Court, the Supreme administrative court, the Court of appeal and the presidents of and regional courts and also presidents of the divisions in this courts, have advisors. The advisors function is as an administrative assistant as well as a judicial assistant.

b)    by judicial assistants

As a general rule, every judge has ONE assistant. However in some courts, it is necessary to have more assistants. For example in the Court of Appeal of Lithuania there are THREE assistants to TWO judges.

In the Supreme Court, Supreme administrative court and the Court of Appeal of Lithuania there also exists a judicial department for every court. These departments carry responsibility to collect case law from Strasburg court and also from the court in Luxemburg, to collect other materials in complicated cases. They are also responsible to collect appropriate foreign case law, if it is required for a specific case. The people working in these departments are also considered judges assistants.

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.

All judges’ assistants are considered state servants and can be appointed to their positions on merit.

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

No.

·         Discussion with the judge(s)

Officially No, However informally possibly.

·         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

Yes

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

Yes

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

This is dependent on individual judge’s discretion.

·         Drafting complete judgments

Yes. This is dependent on individual judge’s discretion.

·         Proofreading of decisions, maybe including discussing certain points with the judge/pointing out inconsistencies etc. 

Usually no, however this is dependent on individual judge’s discretion.

·         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, assistants do not have any procedural rights.

·         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

Only when providing technical support

-       Correspondence with parties

Only when providing technical support

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

Yes.

-       Collecting statistical data

No

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

This is dependent on the individual judge’s discretion. It could be up until the final draft is made.

5.         Are judicial assistants present during deliberations? If yes, do they participate in the discussion?

Usually no. This is dependent on the individual judge’s discretion.

6.         Are judicial assistants present in hearings? If so, what duties do they have during hearings? Are they allowed to ask questions?

No.

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?  

All judicial decisions.

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

In general the sole occupation of the assistant is to help technical support and in the assistance of collection and drafting of documents. The final decision can be made only by the respective judge and at the judge’s full responsibility.

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 official data. However the common opinion is that the assistants save a great deal of judge’s time by dealing with the drafting process and any technical issues. This allows the respective judge a greater amount of time dealing with the judicial making procedure.

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.

12.      If there are lay judges in your system, are they specifically supported by judicial assistants?

No.

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?  

Yes. The only exceptions is the Supreme Court and the Supreme administrative court. In these courts they are assigned cases suited to their specific dispute specialization.

·         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, if they work in the Supreme Court, Supreme administrative court and the Court of Appeal of Lithuania there also exists a judicial department for every court. Please see answer to question 1b.

·         Or do they work in teams put together for certain cases? If so, what is the ratio judge/judicial assistant?

No, usually ONE judge to One assistant.

14.      Who pays them?

They are paid by the state of Lithuania.

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

They are state servants.

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?

About 40-60% of a judges salary.

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. Though the majority of newly appointed have been through this process.

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?

It is obligatory to have both law degree and masters.

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 can be without any experience. In Lithuania judges are limited to a judicial positions.

20.      How are they selected?

They are selected on merit.

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?  

That dependents on the person. There is no restriction to the duration that someone may hold the position.

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

It isn’t considered a short-term position.

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 considered normal legal work.

24.      If being a judicial assistant is a long-term/permanent position, are there opportunities for advancement?

The same applies for all state servants. E.G.

·         Longer holidays

·         A tiered salary.

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 they do not swear an oath and they are not required to wear official dress of any kind.

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?

Common rules for state servants are written in the law. Specific requirements according to education are provided by the Judicial Council.

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?

No.

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

Yes. Judges assistants have an association. Judges assistants have a special process for furthering their educations.

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?

No, we believe the situation to be adequate.

31.      Are there certain challenges that your member State faces as regards the support for judges which have not been mentioned so far?

No.