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
b) by judicial assistants
In the Romanian judicial system, judges are supported in performing their judicial activities by the court clerks (court of law, county court, appeal court), the assistant-magistrates and the court clerks (High Court of Cassation and Justice).
Art. 55 of Law no. 304/2004, amended and completed, regarding the judicial organization of Romania reveals the following: „(1) The panel for the settlement of the first instance cases regarding labor and social insurance conflicts shall be formed by a judge and 2 judicial assistants. The provisions of Art. 11 and of Art. 52, para. 1 shall appropriately apply. (2) the judicial assistants participate in debates with a consultative vote and sign the rendered decisions. Their opinion shall be recorded in the decisions, and their separate opinion shall be motivated. “
Law no. 304/2004, amended, contains a special title, respectively Title V (Art. 110-115) regarding 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.
In the judicial activity of Romania, the role of the court clerks has become more important. It has become a requirement and a solution to improve the quality of the judicial act and to avoid the overloading of judges. The court clerk profession is regulated by Law no. 567/2004, regarding the court and the prosecutor's office ancillary staff, with subsequent amends, and by Law no. 304/2004, regarding the judicial organization, which provisions were detailed by the operating regulations of the courts and the prosecutor's office attached thereto. In the Romanian judicial system, the specialized ancillary court staff and the prosecutor's offices attached thereto is made up of court clerks (instance court clerks); statistical clerks; documentation clerks; archive clerks; registration clerk; IT specialists. The court clerk body is made up of court clerks with higher legal education, as well as secondary education.
The assistant-magistrates operate within the Higher Court of Cassation and Justice and the Constitutional Court of Romania.
The magistrate assistant body within the High Court of Cassation and Justice is made up of a prime assistant magistrate, chief assistant magistrates, and assistant magistrates.
Their purpose is to help the judges of the supreme court by supporting the judges in ensuring the performance of a high quality judicial activity. A body of court clerks with precise judicial duties also exists within the supreme courts. Their activity is guided by the assistant magistrates who participate in the judgment sittings.
The capacity of the judicial assistants is shown in point 1.
In conclusion, it should be mentioned that in Romania, the role of the court clerks and assistant magistrates is well-defined, as the staff who supports the judges in performing a high quality judicial activity, the role of the judicial assistants being distinctive, as shown in the provisions of point 1, for the cases that require a certain specialization, respectively, first instance labour and the social insurance conflicts causes.
In the Romanian judicial system, the judicial activity is regulated by the Codes of Criminal and Civil Procedure, that expressly provides the competences of the court clerks. These provisions are completed with the provisions of the internal regulations of the courts and the operational regulations of the High Court of Cassation and Justice, regarding the assistant-magistrates and the court clerks.
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
The most important duties of the instance court clerks in the courts of law of Romania (court, county court, appeal court) are the following: participating at the judgment sittings; drawing up the concepts for summoning of the parties in the lawsuit; drafting the procedural documents ordered by the panel, filling in the record of the judgment sessions, that records the files of the respective sitting, in the order stated by the list of cases; communicating the court decisions within the term provided by the law; typing the court decisions and other works assigned by the court management; transcribing the audio recording and the transcripts of the court meetings, in compliance with the law. The court clerks type the statements of defendants, civil parties, aggravated parties, witnesses, following the assignment of the President of the panel.
The assistant magistrates within the High Court of Cassation and Justice who participate in the judgment sessions have the following duties a) taking measures, based on the decision of the President of the panel, regarding the performance and the archiving of all the works required for the successful performance of the judgement session by the instance court clerk; guiding the instance court clerk activity, in the case of assistant magistrates of the First Civil Section, Second Civil Section, and the Administrative and Tax Section, drafting the report regarding the admissibility in principle of the second appeal, within the conditions stipulated by Art. 493, para. 2 of the Code of Civil Procedure, according to the designations of the president of the panel; order the communication of the report by the instance clerk, in compliance with Art. 493, para. 4 of the Civil Procedure Code, in the case of the assistant magistrates of the First Civil Section, Second Civil Section, and the Administrative and Tax Section; in the case of the assistant-magistrates of the Criminal Section, they perform the following: drawing up the report regarding the cassation second appeal application, provided by Art. 439, para. 5 of the Criminal Procedure Code, according to the designation; checking the fulfilment of the communication procedure of the cassation second appeal, according to the designation, and, in case it founds that the communication procedure is not fulfilled or incomplete, they shall carry out the communication procedure to fulfillment or completion, as the case may be, by ordering the fulfillment of the communications by the instance court clerk according to Art. 439, para. 5 of the Criminal Procedure Code; after the opening of the debate, they shall announce the causes in the order established by the President of the panel, call the roll of the parties and the other summoned persons, report the manner in which the summoning procedure was conducted and over the fulfilment of the other decided measures, briefly refer to the object of the case and the state of the judgment; note, for each party the verbal hearing of the party and of the prosecutor, as well as the measures decided in court; under the guidance of the President of the panel, ensure, for deliberation, the consultation of the necessary normative acts and the information regarding case law and doctrine, draft the conclusion, excepting the session conclusion (the latter shall be drafted by the clerks); the assistant magistrates of the First Civil Section, Second Civil Section, Administrative and Tax Sections shall perform the following: participate with a consultative vote on the deliberations, in the case of the panel of 5 judges in the civil matters and the panels for the settlement of the reviews for the uniform interpretation of the law and the panels for solving certain law matters; sign the record; order the communication of the decisions provided in Art. 493, para. 5 and 6 of the Civil Procedure Code by the instance clerk; record the important or principle solutions and the legal grounds, according to the appointment of the President of the panel, observing the legal terms; coordinate and check the drafting of the other procedure acts drawn up by the court clerk; check the records in the IT system and ensure the fixing of the deficiencies found.
Within the Court of Cassation and Justice of Romania, a body of court clerks with prior judgment session duties also operates during as well as after the judgment sessions. As an example, their duties prior to the judgment sessions consist in: taking the files that have the term of the trial in the schedules session, and present them to the assistant judge 10 days prior to the trial term; calculate under the guidance of the assistant-magistrate, the stamp duty and the judicial stamp; draft the summons, check the good functioning of the IT systems, as well as the recording equipment from the meeting room, and, if they discover irregularities, they acknowledge the assistant magistrate and inform the specialized department, to fix the issue a timely manner; during the sessions their duties are the following: receiving the writings submitted during the judgement session, check and attach them to the case file; records the data necessary in order to draw up the meeting conclusions, in the court clerk book, numbered and signed, for each file; after the court meeting: filling the ECRIS software with the decisions rendered in full, for the cases that are not final, as well as the terms and measures decided by the court by the conclusion, for the cases where the decision was not final; print the session log and sign it for conformity, presenting it for the purposes of verification and signature, to the assistant magistrate; draft the session conclusions.
The judicial assistants who participate in the assembly of the panels for the settling in the first instance the causes regarding labour and social insurance conflicts are appointed by the Ministry of Justice, on the proposal of Social and Economic Council, for a period of 5 years, among the persons with at least 5 years seniority in a legal position, and that cumulatively fulfil the following conditions: to be Romanian citizens, Romanian residents and to be able to exercise in full their capacity; have a bachelor degree in law and prove an appropriate theoretical training; do not have any criminal history; tax record and have a good reputation; to be fluent in the Romanian language; to be capable from a medical and psychological point of view, to exercise in full the duties of this position. The provisions regarding the obligations, interdictions, and incompatibilities of the judges and prosecutors shall also apply to the judicial assistants.
4. If judicial assistants help in the drafting process, how do they do it?
As shown in point 2, the meeting clerks, of all instances
(court, county court, appeal court), assistant magistrates and court clerks within the High Court of Cassation and Justice type the decisions in full.
The judicial assistants motivate their separate opinion, as shown in point 1.
5. Are judicial assistants present during deliberations? If yes, do they participate in the discussion?
The assistant magistrates within the High Court of Cassation and Justice of Romania participate in deliberations, with a consultative vote, and assistant-magistrates of the First and Second Civil Section, the Administrative and Tax Section also sign the records.
The judicial assistants of the panels for settling in the first instance the causes regarding labor and social insurance conflicts participate at deliberations with a consultative vote.
6. Are judicial assistants present in hearings? If so, what duties do they have during hearings? Are they allowed to ask questions?
The court clerks of all instances (court, county court, appeal court) and the assistant magistrates and the court clerks of the High Court of Cassation and Justice attend the hearings, fill the statements of the parties, ordered by the President of the panel. They do not have the right to ask a question.
7. Is there a formal rule or an informal consensus among judges, what kind of duties a judicial assistant should and should not undertake?
The court clerks of all instances (court, county court, appeal court), the assistant magistrates and the court clerks of the High Court of Cassation and Justice, as well as the judicial assistants, that fall under the conditions of point 1, have regulations contained in the judicial organisation law and the regulations of court organization, The High Court of Cassation and Justice, in which their duties are expressly specified, distinctively to the duties of judges.
8. Which duties belong exclusively to the judge?
The judges participating in the judgment activity, in panels in the judgment session, shall fulfil the provision of the Criminal Procedure Code and of the Civil Procedure Code, shall read the act of apprehension in the criminal matter or order the drafting of a summary read by the clerk or by the assistant magistrate, acknowledge the parties and the other persons involved in the trial, about their rights and obligations, bring the claims and the exceptions in a verbal, direct and contradictory discussion, hear the parties, grant the claims, administrate the evidence, deliberate (sometimes with the participation of the assistant magistrates and/or of the judicial assistants in the conditions shown above) with their consultative votes), draft the records, draw up the decisions, check the electronic session log and sign it, draft the report of the review for the uniform interpretation of the law, at the notification of the High Court for the rendering of a prior resolutions for a matter of law.
9. How does the work of judicial assistants affect decisions and judicial decision making? How do judges ensure that the decision remains "their"?
The consultative vote in accordance with point 4 does not affect the judicial decision making. The ruled records are posted in the ECRIS software.
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 an assessment system in place for clerks, assistant magistrates and court clerks within the High Court of Cassation and Justice of Romania, with individual personalized files, with different parameters according to their specific and their duties.
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 the Romanian judicial system, the court clerks support the judges in all jurisdiction levels, courts, county courts, appeal court, the assistant magistrates support the judges of the High Court of Cassation and Justice and the Constitutional Court, there are also court clerks in the High Court of Cassation and Justice who support the judges, in relation to the specific activities shows, coordinated by the assistant magistrate.
12. If there are lay judges in your system, are they specifically supported by judicial assistants?
There are trial structures called panels made of two, three, five or more judges in the mechanism on ensuring a unitary practice, however the clerks, assistant judges and court clerks who are assigned, have the same duties, without any specifics.
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?
The panels made up of a single judge have a clerk assigned.
The peer panels, made of more judges, several clerks or assistant-magistrates are assigned. For example, in the High Court of Cassation and Justice a panel made up of three judges, has three assistant magistrates and two court clerks assigned by rotation, in order to achieve the continuity of the panel, according to the judge who is the president of the panel.
In the event of a complex case within the High Court of Cassation and Justice, with a very large number of parties, several court clerks are being assigned, yet only one assistant-magistrate remains.
14. Who pays them?
They paid by the state budget, the wage of clerks, assistant magistrates being established based on degrees or professional steps, according to the position they hold, the level of education, seniority in the field, as well as with the level of courts or prosecutor's office, as the case may be.
15. What is their status? Are they considered as, for example, civil servants, seconded judges or just employees?
The clerks have the same express status provided by the law, the assistant magistrates being assimilated to the judges of the appeal courts.
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?
As mentioned before, the wages of the clerks and the assistant judges is formed by degrees or professional steps, according to the criteria mentioned at point 12. The wages of clerks with higher education are pretty high, compared with other Romanian social categories, less than ½ of the wage of a judge, from a court, county court, or appeal court. The assistant magistrate is paid according to the degrees, legal studies at the level of an appeal 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?
Yes. It's not a mandatory requirement for becoming a judge. There were cases when, after a relatively long time, court clerks took the magistry admission exam and became judges.
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?
The clerk has a higher or secondary specialized legal education. The assistant judges of the High Court of Cassation and Justice have specialized higher education. Attorneys, notaries, legal specialized staff from the Ministry of Justice, Public Ministry, the Higher Council of Magistracy, the National Institute of Criminology, the National Forensic Institute, the National Institute of Forensic Expertise and of the National Institute of Magistracy, as well as the clerks with higher legal education from the appeal courts and the High Court of Cassation and Justice, with a seniority of at least 5 years, may be recruited following an exam.
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?
To become a court clerk, he/she must fulfil the following conditions:
To have Romanian citizenship, Romanian residency and to be able to exercise in full their capacity, to be with no criminal history and have a good reputation; good command of the Romanian language; the ability, from a medical standpoint, to carry out the duties of the position; higher specialized or secondary education, PC operating and typing skills; to have graduated from the National School of Court Clerks.
20. How are they selected?
Based on the exam on the National School of Court Clerks, that operates in Romania as of 2000. The law allows and organizes exams for the direct occupation of the court clerk positions, based on an exam organized by the appeal courts or the prosecutor's offices attached to the appeal courts, for the court clerks within the latter, or by the High Court of Cassation and Justice or the prosecutor's office attached to it, if a large number of vacancies may seriously impair the carrying out of the activity.
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, it is a long-term career or a permanent one, until retirement.
22. If it is a short-term position, what do they do afterwards?
This is not the case.
23. If serving as a judicial assistant is not part of the legal education, why do applicants apply to work as judicial assistants?
This is not the case.
24. If being a judicial assistant is a long-term/permanent position, are there opportunities for advancement?
Yes, there are possibilities of promotion, with degrees and professional stages, as well as management positions such as chief clerk, prime clerks within every court, county court, appeal courts, the High Court of Cassation and Justice.
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?
The court clerks swear an oath before the court manager or the prosecutor's office manager and wear grey gowns during the judgment sessions. The assistant judges within the High Court of Cassation don't oath and wear black color gowns in the trial meetings.
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?
In regards to the court clerks there are provisions contained in the Internal Regulation Order of the Courts of Romania, contained in Section 7 - Provisions regarding the activity of the ancillary departments of the courts, art. 48-63; the judicial assistants have provisions contained the same above-mentioned regulation but in Section 6 of art. 39-40; the assistant-magistrates and the court clerks within the High Court of Cassation and Justice have provisions contained in Chapter VII art. 47-54, and in Chapter VII of art. 55 4.
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?
There are provisions regarding the incompatibility of court clerks in the Civil Procedure Code and in the Criminal Procedure Code.
29. Can judicial assistants in your member State become members of an association of judges or is there a special association for them?
There are distinctive professional associations of court clerks.
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?
Judge Ph. D. in law Rodica Aida Popa
High Court of Cassation and Justice Romania
7 february 2019