Strasbourg, 7 January 2019
CONSULTATIVE COUNCIL OF EUROPEAN JUDGES (CCJE)
REPLIES - POLAND
The replies refer to common courts unless stated otherwise
(e.g. with regard to administrative courts)
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
b) by judicial assistants
Judges are supported by administrative assistants, judicial assistants and IT staff.
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 difference between judicial assistants and administrative assistants is that judicial assistants have to have law degree.
Judicial assistants are employed to support judges in their work, to prepare drafts of judgments, analyse the legal and factual status of case.
Administrative assistants send correspondence, preparing the official copies of decisions, preparing decisions for publication, collecting statistical data and keep register of cases.
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
Ad 3 The following tasks are performed by judicials assistants:
• 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 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,
• Organisation of files,
• Correspondence with parties,
• Supervision over anonymisation of judgments.
4. If judicial assistants help in the drafting process, how do they do it?
Judicial assistants help in drafting process by looking for case law, reading files and legal comments and after that write draft of the judgment.
5. Are judicial assistants present during deliberations? If yes, do they participate in the discussion?
Ad 5: No
6. Are judicial assistants present in hearings? If so, what duties do they have during hearings? Are they allowed to ask questions?
Ad 6: 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?
Judicial assistants should be present in hearings because it would help in writing drafts of the judgments.
Judicial assistants shouldn’t write drafts of the judgments without support of the judge.
8. Which duties belong exclusively to the judge?
Issuing a judgment, deliberations before issuing a judgement.
9. How does the work of judicial assistants affect decisions and judicial decision making? How do judges ensure that the decision remains "their"?
It depends on specific judge.
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 ?
Periodically, judicial assistants prepare a list of judgments they prepared and every two years they are evaluated with quality of their work.
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?
Judges are supported by judicial assistants in all courts, in all instances.
12. If there are lay judges in your system, are they specifically supported by judicial assistants?
In our system of common courts there are lay judges and they are not supported by judicial assistants but in administrative courts there are no lay judges.
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?
• One judicial assistant supports two judges,
• Judicial assistant does not work with the panel of judges,
• Every assistant works individually.
14. Who pays them?
Ad 14: The court.
15. What is their status? Are they considered as, for example, civil servants, seconded judges or just employees?
Ad 15: Judicial assistants are considered as 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?
Judicial assistants earn ¼ of the salary of judges.
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?
Ad 17: 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?
A degree in law is the only requirement (in addition to Polish citizenship and the age of at least 24)
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 do not need to have any work experience to be employed. As for the Supreme Administrative Court, it organises a schooling in Warsaw which ends with oral and written exam.
The schooling lasts 3 semesters- 300 hours of lectures and practical classes. Lectures and practical classes are held twice a month for 2 days.
During the exam judicial assistants answer the 5 questions from administrative and tax law and write a judgement.
The schooling is regulated by ordinance of President of The Supreme Administrative Court.
20. How are they selected?
According to art. 155 § 2a of the act – Law on the system of common courts, there is a competition organised by president of the court, on the knowledge of law (§ 2a: Candidates are enrolled by way of a competition aimed at the selection of the candidate with the most extensive knowledge and the greatest skills, capabilities and general abilities necessary for the performance of the duties of a judicial assistant ).
The competition is also regulated in the decree of Minister of Justice regarding the conduct of the competition for a position of judicial assistant.
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?
Usually, judicial assistants work for few years but it is not a long term career.
22. If it is a short-term position, what do they do afterwards?
For example, they later become judges (can take a judge’s exam after 6 years of service as an assistant), attorneys, prosecutors.
23. If serving as a judicial assistant is not part of the legal education, why do applicants apply to work as judicial assistants?
In order to get experience in work with judges, court work and to learn how to write judgements and pleadings which may be helpful in the future career.
24. If being a judicial assistant is a long-term/permanent position, are there opportunities for advancement?
After 10 years of service (in administrative courts, 5 years of service) judicial assistant may become a senior judicial assistant.
(see 155 § 3b p. 1) of the act – Law on the system of common courts)
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?
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?
The regulations in this regard (attached separately) are included in:
- the Act - Law on the system of common courts (Articles: 155 – 155e; regulations on other administrative staff can be found in Articles 147-154 and 156);
- the Decree of the Minister of Justice of 14 October 2013 regarding the conduct of the competition for the post of judicial assistant [Dz.U.2013.1228];
- the Act - Law on the system of administrative courts (Articles: 6 § 1 (1)-(3), 10, 27,27a, 28);
- The ordinance no. 4 of President of The Supreme Administrative Court of 21 January 2014 on the procedure for conducting a competition for the position of assistant judge in provincial administrative courts.
27. Are there informal rules governing the relationship between judge and judicial assistants?
Ad 27: No
28. Are there any rules - formal or informal - concerning the independence and impartiality of judicial assistants?
Ad 28: No
29. Can judicial assistants in your member State become members of an association of judges or is there a special association for them?
The association of judicial assistants was dissolved on 25th August 2018 r.
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?
There should be one judicial assistant per one judge, and not the way it is at the present moment, now that one assistant supports two or even three judges.
31. Are there certain challenges that your member State faces as regards the support for judges which have not been mentioned so far?