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

In the Moldova, judges are supported in their work by judicial 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.

The institution of judiciary assistants in the Republic of Moldova is relatively new. In August 2012 the position of judicial assistant has been introduced. Respectively, since that time, the judiciary has been hired to assist the judge in exercising his functions.

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

Judicial assistants have the following tasks:

1.    Prepare the normative acts and information necessary for the judge to examine the civil / criminal / contraventional causes.

a. Collects the necessary normative acts for the judge and other information for judging distributed files;

b. Provides thematic support to the judge in exercising his / her duties;

c. Generalize the issues of law when files distributed to the judge and develop recommendations on issues related to the interpretation and enforcement of the law;

d. Participate in working groups and committees, within the limits of their competence.

2.    Verification of the documents submitted and attached to the file by the participants in the process.

a. Checks and informs the judge of any omissions regarding the form and content of the petition for trial in the randomly distributed file to the judge;

 b. Study the files assigned to the judge, verify the correctness of the documents and documents annexed to the file;

c. Checks the necessary mandatory papers to be presented by the participants in the process;

 d. Upon the examination of the case, at judge’s indication, returns the original of the documents at the request of the trial participants who have submitted them and which are not the subject of the action;

e. Provides access to the files in the proceedings with the addressees and their representatives, with the completion and signature of the statement.

3.    Elaboration of draft procedural documents.

a. Elaborates in electronic format, at the judge's indication, drafts of procedural / judicial acts;

b. Performs, within the limits of competence, automated records and process documentation;

c. Forms responses to the letters, complaints and petitions in their area of ​​competence.

d. Elaborates the report on the dismissed / modified cases of the judge.

4.    Ensure the depersonalization of judgments and their publication on the court web site.

a. Depersonalizes court procedural documents issued by the President of the court hearing in accordance with the legislation in force;

b. Publishes court procedural documents on the web site of the court in accordance with the current legislation;

c. Ensures and is responsible for updates in time, according to the competence of the Integrated File Management Program;

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

Judicial assistants participate in the drafting of judgments. Judicial assistants prepare the draft decision.

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

Judicial assistants are not present during deliberations.

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

Judicial assistants do not attend hearings.

8.         Is there a formal rule or an informal consensus among judges, what kind of duties a judicial assistant should and should not undertake?

Each unit consists of a judge, a clerk and a legal assistant. The division of attributions   between them is determined by them.

9.         Which duties belong exclusively to the judge? 

The deliberation and adoption of the decision is the duty exclusively to the judge.

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

Judicial assistants cannot influence judgments and decisions by the judge. The purpose for which judges need to be independent is the realization of an impartial justice, that is, objectively and correctly and outside any inappropriate influence.

11.      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 ?

The quality of justice is not based solely on the quality of performance by judges, but also on the quality of the benefit by auxiliary staff who contribute to its performance. Judicial assistants are the ones that ease the work of judges. The quality of the act of justice depends greatly on the professionalism, honesty and moral integrity of the judiciary assistants.

II. Organisation of judicial assistants

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

In Republic of Moldova, according to the law, the judicial assistant is the employee of the court that assists the judge in exercising his functions. Each judge is assisted in his work by a legal assistant. As for the Supreme Court of Justice, each Judge is assisted by 3 Judicial Assistants.

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

There are no lay judges in the RM system.

14.      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?

Each judge is assisted in his work by a legal assistant. As for the Supreme Court of Justice, each Judge is assisted by 3 Judicial Assistants. Thus, the law established that judiciary assistants should be appointed to concrete judges, assisting the judge in all types of cases.

15.      Who pays them?

Judicial assistants are remunerated from the state budget.

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

Judicial assistants are civil servants.

17.      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?

Judicial assistants have approximately 1/3 of the salary of a judge at first instance.

III. Background and selection of Judicial Assistants

18.      Is serving as a judicial assistant a necessary part of the legal education in your member State / a prerequisite for becoming a judge?

The judge may be a candidate for a reputable person who holds the citizenship of the Republic of Moldova and is domiciled in the country and fulfills the following conditions: he has completed the National Institute of Justice or has seniority at work.

It is considered seniority at work, that gives the person the right to stand for the position of judge, his activity during the last 5 years as a judge or assistant judge of the Constitutional Court, judge in international courts, prosecutor, law professor in the institutions accredited higher education, trainer of the National Institute of Justice in the field of law, lawyer, judicial assistant or clerk.

19.      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 legal assistant has higher degree, is a person who holds a law degree or equivalent.

20.      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 legal assistant must have a legal work experience of at least one year.

21.      How are they selected?

Assistants are selected on a contest basis. The contest includes the written test and the interview.

22.      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? 

Judicial assistants usually work for a long-term / permanent function.

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

-

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

Their activity over the past 5 years as a legal assistant is an opportunity to have a seniority in work that gives the person the right to run for the post of judge after passing the exam.

Also, persons applying for admission to the National Institute of Justice to apply for a Judge must have a minimum of 2 years of professional experience in legal professions, including a judicial assistant.

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

Their activity over the past 5 years as a legal assistant is an opportunity to have a seniority in work that gives the person the right to run for the post of judge after passing the exam.

IV. Status and regulation of judicial assistants 

26.      Do judicial assistants swear an oath? Do they wear some form of official dress at certain occasions? E.g. gowns when in court?

Judicial assistants swear an oath of faith with the following content: "I solemnly abide by the Constitution of the Republic of Moldova, human rights and fundamental freedoms, to defend the sovereignty, independence and territorial integrity of the Republic of Moldova, to execute objectively and impartially the laws of the country, conscientiously my duties in the exercise of public office and respect the rules of professional conduct. "

Judicial assistants do not wear any form of official dress at certain occasions.

27.      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?

Article 47 of the Law on Judicial Organization no. 514 of 06.07.1995 provides as follows:

Article 47. Judicial

Assistant

(1) The judicial assistant is the employee of the court that assists the judge in exercising his functions. Each judge is assisted in his work by a legal assistant.

(2) A legal assistant may be a person who has a law degree or equivalent, with at least one year of legal employment, selected on the basis of the provisions of the Law no.158-XVI of July 4, 2008 regarding the public function and the status of civil servant.

(3) The Judicial Assistant shall have the following duties:

a) collects the normative acts necessary for the judge and other information necessary for the trial of the file distributed to the judge;

b) generalizes the issues of law in the files distributed to the respective judge and develops recommendations on issues related to the interpretation and application of the law;

c) verify the presence of the acts to be presented by the participants in the trial;

d) elaborates, at the indication of the judge, drafts of procedural documents;

e) ensures the depersonalization of judgments and their publication on the web site of the court;

f) participate in working groups and committees within the limits of its competence;

g) fulfills, at the indications of the judge, other duties related to the performance of justice.

(4) The Judicial Assistant is obliged to continuously improve his / her professional qualities, following the continuous training courses organized by the National Institute of Justice.

 

In Moldova there is no formal regulations concerning the status and duties of judicial assistants.

28.      Are there informal rules governing the relationship between judge and judicial assistants?

The relationship between the judge and the judicial assistants is determined by each individual party.

29.      Are there any rules - formal or informal - concerning the independence and impartiality of judicial assistants?

According to art. 4 and 5 of the Civil Servant's Code of Conduct:

Article 4.

Impartiality

(1) The civil servant is obliged to make decisions and take actions in an impartial, non-discriminatory and equitable manner without giving priority to persons or groups according to race, nationality, ethnic origin, language, religion, gender, opinion, political affiliation , wealth or social origin.

(2) The civil servant must have a behavior based on respect, exigency, fairness and courtesy in his relations with the public, as well as in relations with the leaders, colleagues and subordinates.

 (3) The civil servant shall not cause natural or legal persons, including other civil servants, to adopt illegal behaviors, using his / her official position.  

Article 5.

Independence

(1) The civil servant's political affiliation shall not influence the conduct and decisions of the civil servant, as well as the policies, decisions and actions of the public authorities.

(2) In the exercise of public office, the civil servant shall be prohibited:

a) to participate in the collection of funds for the activity of political parties and other social-political organizations;

b) to use administrative resources to support electoral contestants;

c) to display, within the public authorities, insignia or objects bearing the logo or the names of the political parties or their candidates;

d) to propagate in favor of any party;

e) create or contribute to the creation of subdivisions of political parties within public authorities.

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

Judicial assistants cannot be a member of the association of judges. There is no special association for them.

V. General considerations about the support of judges

31.      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?

In our system, judges do not need more or different support by personnel to work effectively.

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