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 - yes

b) by judicial assistants - yes

2.         What is the rationale for employing assistants in your system? If there are different rationales for employing administrative assistants and judicial assistants, please describe those rationales separately.

Administrative and judicial assistants:

Supporting the judge with administrative tasks and preparation of cases, so the judge can focus on preparing for the hearing and revising the judgment. With the administrative tasks out of the way, judges are able to do more cases (productivity for judges goes up).

Judicial assistants:

Judicial assistants function as a sounding board for judges, especially when there’s only one judge presiding over a case.

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

Yes, depending on the kind of case and the judge involved.

For example, in certain divisions a judicial assistant is the first one to prepare a case. They put tags on important pages, write a memo that includes: facts, summary of standpoints of all parties involved, relevant law, decisions by other courts (jurisprudence), suggestion of how the case should be decided, suggestion for questions that could be asked at the hearing. They also contact parties (by telephone or they draft letters) when a case is not complete or to inform parties if they should prepare for certain questions on formalities of the case (for instance: did they appeal within the time frame).

·         Discussion with the judge(s)

Yes, after (and also before) the oral hearing. The judicial assistant for example takes part in the deliberations. If need be, they also discuss the case with a judge prior to the hearing. Often times they also discuss any major changes between the draft and the final judgment.

·         Memos with a summary of the facts of a case and the relevant law

This depends on the field of law (in civil cases sometimes, in administrative law cases most of the times).

·         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

See above.

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

No

·         Drafting parts of the judgment, if so which parts? 

Drafting complete judgments, in cases in which a hearing has been held but also in cases that are dealt with without an oral hearing (with an extra round in written documents)

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

Yes.

·         Reading draft judgments of other judges and discussing them with the judge

Yes.

·         Crosschecking references

Yes, but that differs per team. If parties make references to other judgments, laws, articles etc, then it’s common for the judicial assistant in administrative law to cross-check these references when preparing a case.

·         Drafting press releases

This depends whether the judgment will be available to the public. Some judgments are selected by the judge and judicial assistant to be ‘published’ (made available to the public on a website). Also, all cases that have three judges presiding over them are to be published on that website. The judicial assistant drafts a summary of the case, which will be added on the website. Drafting press releases are usually done by the communication department.

·         Drafting procedural decisions

Yes

·         Deciding procedural issues such as appointing an expert or deciding on costs of proceedings

Yes. For example before appointing an expert this will be discussed between the judge and a judicial assistant.

The cost of an appeal is determined by law and the administrative assistant will figure out for each case what the cost is. If an appeal is granted, the judicial assistant will include the amount of compensation for the appeal (travel costs, hiring a lawyer, etc) in the draft of the judgment.

·         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 - yes

-       Organisation of files

This is the case when it comes to preparing the case and doing a final check to see if all the necessary documents are available. Also, when it comes to making sure that all judges receive a copy of the case file (there is only one case file, so the judicial assistants are responsible for providing copies when three judges are presiding over a case)

-       Correspondence with parties –

This the case when it comes to drafting letters that are not part of the normal administrative process (like asking specific questions so that parties can better prepare for a hearing). No when it comes to actually sending the letters or drafting/printing out standard letters (like invitations to the hearing)

-       Preparing the official copies of decisions, preparing decisions for publication - no

-       Collecting statistical data - no

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

The judge and judicial assistant deliberate about the outcome of a case. That can be an extensive deliberation (especially when three judges preside over a case), but it can be as short as: draft the judgment along the lines of the memo you wrote about the case. When a judicial assistant hits a roadblock while drafting the judgment, they either confer about it with the judge or change the draft to what they feel is right by themselves. Major changes in the outcome of a case will be discussed with the judge beforehand, but including, excluding or changing certain considerations most likely will be done without consulting the judge. It is expected of judicial assistants to stay critical when writing the draft of the judgment.

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

Judicial assistants are often expected to have an active role in the deliberations. In some divisions they are expected to voice their opinion and be able to defend it.

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

Judicial assistants are present during hearings. They take notes: not word for word, but the gist of what’s being said. They also keep an eye on their memo to check if all the (important) questions are being asked, so there will be no loose ends. Most judges will ask if the judicial assistant has any questions. It’s getting more common for judicial assistants to actually ask questions, especially when there’s only one judge presiding over the case.

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

Yes

8.         Which duties belong exclusively to the judge?  

The judge will have the final say about the direction of the judgment. They are responsible for the final outcome of the judgment. They conduct hearings. They also have the final say in procedural decisions (are we going to appoint an expert, continuances, etc).

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

That is a difficult question. There has been recent research on this question in The Netherlands (by Nina Holvast) and it appeared that assistants do have some influence.

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 ?

In some sections of the court, judges do not write judgments at all, which saves them time so they can do more hearings. I do not know of any official data, but the research (see under 9) might contain some.

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 instances.

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

There are no lay judges in our system.

13.      How are judicial assistants organised?

If there are different forms of organisation at different courts, please explain the different models. For example:

The judicial assistants are assigned to a team of judges in a specific field of law. I think there are about 1,5-2  judicial assistants per judge in some teams, but in other teams it might be less.

14.      Who pays them?

The Court where the judicial assistants work for.

         

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

Civil 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?

A senior judges earns about 1.000 euro bruto more per month (or more).

III. Background and selection of Judicial Assistants

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

No.

18.      What kind of education do judicial assistants have? For example, studies of law, politics, service in the police or military etc., a special education?

University degree in law. And  internal education at the court.

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?

Judicial assistants come from all ‘directions’. Some have been lawyers/attorneys, some have just graduated, others have worked as legal staff for a company.

20.      How are they selected?

Interview (after selection from application letters) and writing test.

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?  

Some work here very long, others leave quickly, some five years. It differs.

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

They work for a law firm, some apply for the position of judge. Or they work for a ministry/government body.

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

Interesting work, get working experience in the legal field.

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

You can change from one field of law to another (horizontal movement). There are not (yet) many opportunities to grow ‘vertically’ in the organization unless you want to be a manager.

IV. Status and regulation of judicial assistants 

25.      Do judicial assistants swear an oath? Yes.

Do they wear some form of official dress at certain occasions? E.g. gowns when in court?

Yes during hearings a gown.

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?

Civil servants law is applicable.

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

That differs per court and per team.

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

Not really.

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

No.

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?

In some sections it would be more effective to get more judicial assistance. For example with the writing of decisions/judgments.

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

A financial challenge. Everyone in the judiciary agrees that more assistance is needed, but there is a financial problem. Also, the judicial assistants (the majority) would like to earn more, at least the same as judicial assistants earn at the departments of the central government. There is a discussion going on about this topic at the moment, but the outcome of this discussion has been delayed until further notice