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.
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, in all courts.
b) by judicial assistants
Yes, in the Supreme Court and some Courts of Appeal. No first instance courts have 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.
Administrative and judicial assistants ease judges’ workload and facilitates an effective administration of courts.
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 at the Supreme Court
There is no tradition for judicial assistants in Norwegian courts, except the Supreme Court who has had such for more than 60 years. Today, the Legal Secretariat is the largest unit in the Supreme Court’s administration, and it employs 23 people, including the Head and the Deputy Heads of the Legal Secretariat as well as two clerks of record and one student law clerk.
There are 20 judges at the Supreme Court.
The Legal Secretariat works to serve the Appeals Selection Committee and the other units of the Supreme Court.
When an appeal is received by the Supreme Court, it is handed to a law clerk. In all types of cases, procedural as well as substantive issues are researched.
In case of an appeal against a judgment, the research is aimed at clarifying whether the case raises issues of principle that should be heard by the Supreme Court. If an appeal is allowed, the law clerks will assist during the case preparation and in connection with the hearing in chambers.
In case of appeal against an order or decision, the research will provide the basis for the Committee's final ruling. The law clerks also have assignments for the Chief Justice, the justices and the Secretary-General.
The law clerk will generally write a memo with a presentation of the case and the questions that arise. The memo will contain a recommendation, for instance on whether leave to appeal should be granted.
The clerks may assist the justices in drafting parts of a judgment or decision, for instance the introductory parts and the presentation of the facts of the case, but the justices will generally write the substantial parts of the judgments themselves.
All Supreme Court proceedings include a clerk of record. The clerks of record are law graduates, who assist the justices and counsel during proceedings. In addition, they proofread all Supreme Court rulings in chambers.
Judicial assistants in the Courts of Appeal
In recent years the two largest of a total of six Courts of Appeal have established a Legal Secretariat similar to the one at the Supreme Court.
Borgarting Court of Appeal is the largest of the six Courts of Appeal. There are about 70 judges at the court, 40 administrative assistants and 15 judicial assistants (including the head of the unit of judicial assistants).
Gulating Court of Appeal is the second largest. There are about 30 judges at the court, 20 administrative assistants and 8 judicial assistants (including the head of the unit of judicial assistants).
4. If judicial assistants help in the drafting process, how do they do it?
They prepare the first draft after consultation with the judge responsible for the first drafting, and assist for instance with data search etc.
5. Are judicial assistants present during deliberations? If yes, do they participate in the discussion?
Normally not. In the Supreme Court, the law clerks will sometimes be present at the hearings, and will usually be present at deliberations among the justices, in order to be better prepared to assist the justices with questions that may arise.
6. Are judicial assistants present in hearings? If so, what duties do they have during hearings? Are they allowed to ask questions?
Normally not. As mentioned, in the Supreme Court, the law clerks will sometimes be present at the hearings, and will usually be present at deliberations among the justices. The law clerks will generally not speak or ask questions during hearings.
7. Is there a formal rule or an informal consensus among judges, what kind of duties a judicial assistant should and should not undertake?
In the Supreme Court, there are written guidelines that outline the tasks and duties of the law clerks.
8. Which duties belong exclusively to the judge?
Deciding the case at hand is exclusively for the judges.
9. How does the work of judicial assistants affect decisions and judicial decision making? How do judges ensure that the decision remains "their"?
It improves case management, the processing of cases and the quality of the decisions.
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 ?
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?
See answer to question 1.
12. If there are lay judges in your system, are they specifically supported by judicial assistants?
Lay judges serve alongside with professional judges in a panel of judges in most criminal cases at courts of first instance, in some, but not all criminal cases at courts of second instance, and in some civil cases at both instances. Lay judges are not 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?
No. In the Supreme Court the law clerks work most of the time for the Appeals Selection Committee, which is comprised by five justices. Each case is first handled by a law clerk, and then passed on to three of the justices in the Appeals Selection Committee, who decide the case. It is usually a single law clerk that works on each case.
· Or are they part of a pool of judicial assistants serving the whole court? If so, what is the ratio judge/judicial assistant?
Yes, they are part of a pool. The ratio judge/judicial assistant is 1/1 at the Supreme Court, 5/1 at Borgarting Court of Appeal and 4/1 at Gulating Court of Appeal
· Or do they work in teams put together for certain cases? If so, what is the ratio judge/judicial assistant?
14. Who pays them?
It is the court in which they work that pays the wages of the assistants.
15. What is their status? Are they considered as, for example, civil servants, seconded judges or just employees?
They are 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?
A judicial assistant in a court of appeal earns about 50 percent of the salary of a judge at that court.
A judicial assistant at the Supreme Court earns about 30 percent of the salary of a Supreme Court judge.
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?
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?
They have a law degree (master’s degree).
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?
There are no specific requirements for prior work experience. However, it is normally required that a judicial assistant has excellent legal qualifications. Judicial assistants are not seconded judges.
20. How are they selected?
They are selected by public and open competition.
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?
As regards the Supreme Court, judicial assistants are employed for a fixed term of maximum seven years.
Judicial assistants at the Courts of Appel are employed for an indefinite period.
22. If it is a short-term position, what do they do afterwards?
More than two year’s work as a judicial assistant at a court is relevant practice when applying for a licence to practice law. Having served as a judicial assistant at a court, some will later on work as a lawyer in a law firm, others in prosecution authorities or in public administration.
23. If serving as a judicial assistant is not part of the legal education, why do applicants apply to work as judicial assistants?
The position as judicial assistant provides relevant experience for future work as a lawyer and will be relevant also in the event of a possible application for a position as a judge later on in the professional career.
24. If being a judicial assistant is a long-term/permanent position, are there opportunities for advancement?
There are few opportunities for advancement within the court as such beyond the positions as head or deputy head of the Legal Secretariat.
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?
In the Supreme Court law clerks wear black gowns when in court.
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?
There are internal regulations as to the tasks of law clerks in the Supreme Court.
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?
Yes, there are rules in the Courts Act to ensure their impartiality. The rules concerning the impartiality of judges also apply to law clerks.
29. Can judicial assistants in your member State become members of an association of judges or is there a special association for them?
No on both points.
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?
31. Are there certain challenges that your member State faces as regards the support for judges which have not been mentioned so far?