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

Judges are supported in their work by both, administrative assistants and judicial assistants. The current non-judge personnel per judge ratio is 3,67[1], while the current judicial assistants per judge ratio is 0,66[2].

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 general assistants are employed to execute all the non-judicial tasks and to disburden the judges of tasks that are not real judicial decision making. One of the main principle is to prepare the non-judicial decisions (e.g. on procedural issues such as court fees) at the lowest level of competence possible. This enables the judges to focus on decision making which can lead to better judicial decisions and also enables the system to be more cost-efficient. In past assistants were also employed to help reduce the court's backlogs[3].

Administrative assistants mainly provide judges the administrative support (case file preparation, assistance during the hearing, preparing the official copies of decisions etc.), while judicial assistants (because of their legal background) mainly assist judges in drafting decisions on all procedural issues as well as judgments (also by research and case analysis). Judicial assistants can therefore also contribute to the quality of the final decisions. Moreover judicial assistants are often seen as candidates for future judges. Consequently working as a judicial assistant enables candidates to gain valuable experience in this field.

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

·                 Discussion with the judge(s) - yes

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

·                 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 - yes

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

·                 Drafting parts of the judgment, if so which parts? Facts, certain points under discussion? - yes (can be any part of the judgment e.g. facts, costs of proceedings)

·                 Drafting complete judgments - yes

·                 Proofreading of decisions, maybe including discussing certain points with the judge/pointing out inconsistencies etc.  - no

·                 Reading draft judgments of other judges and discussing them with the judge - no

·                 Crosschecking references - no

·                 Drafting press releases – yes

·                 Drafting procedural decisions - yes

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

·                 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 – yes; usually the decision has to be approved by a judge (e.g. all simple criminal, commercial cases). In cases concerning enforcement judicial assistants have some autonomous competence[4]; their decisions can be subject to appeal.

·                 In addition to tasks such as those mentioned above, judicial assistants may also perform administrative duties such as:

-        Writing protocols in hearings - no

-        Organisation of files - no

-        Correspondence with parties - no

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

-        Collecting statistical data - no

In past years Slovenian judicial system was facing a serious problem of backlogs as well as high ratio of judges per capita. One of the main objectives therefore  in the past decade was to reduce the number of judges and increase the number of supporting personnel as well as their duties and responsibilities. One of the main strategies was (and still is) to reduce the non-judicial tasks that are entrusted to judges by assigning them to judicial assistants and other personnel.

Today judicial assistants perform a wide range of tasks, which differ to some degree depending on the court or court division:

- judicial assistants in first instance courts have an important role in the pre-trial stage. Some courts have a special “triage office” composed of a triage judge, judicial and administrative assistants. As soon as a new case is fileds with the court, the triage office analyses the case and adopts all necessary procedural decisions (regarding e.g. court fees, incomplete applications etc.). Drafts of decisions are prepared by judicial assistants; the triage judge “approves” the decision when required by law. The cases that are not resolved by the triage office and are ready for trial are then distributed to judges to decide upon the merits of the case. This proved to be an efficient way to disburden the judges of tasks that are not real judicial decision making so they can focus on their main duty;

- judicial assistants also prepare decisions on all procedural issues such as appointing an expert or deciding on costs of proceedings. Some decisions can be made autonomously by a judicial assistants, but the majority of decisions have to be approved (and signed) by a judge;

- one of the main duties of judicial assistants (especially at high courts and the Supreme court) isalso legal research and preparing the reasoning of a judgment;

- at some first instance courts judicial assistants examine witnesses outside the main hearings (typically criminal proceedings) and they can also conduct the main hearings (usually in inheritance proceedings, simple criminal cases, simple commercial cases). The idea is that easier cases are conducted by the judicial assistants under supervision of a judge, who also approves the final decision;

- some judicial assistants also work in supporting services (e.g. public relations, human resources, service for free legal aid, court management). 

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

Usually judicial assistants study the case and conduct case-law analysis. They might also furnish a written report on the case at hand to a respective judge in which they set  forth the arguments of the parties and pertinent legal issues. Then they discuss key issues with the judge who also provides guidelines as to the reasoning of a judgment. The judicial assistant finally prepares parts of the draft judgment or complete judgment. Draft is then edited by the judge.

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

In high courts and in the Supreme Court judicial assistants are present during deliberations. They usually present the case to the panel of judges (the senate) by stating the facts of the case, key issues and proposing a decision. The presentation of the case is followed by a discussion, in which the judges weigh the options and confront their arguments. They may (or may not) invite the judicial assistant to participate in the debate, while the final decision is made by the panel of judges.

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

As mentioned, in some (first instance) courts judicial assistants can also conduct  main hearings under supervision of a judge. When they do so they have the same duties/rights as judges which means they are also allowed to ask questions.

In the past, there was some controversy regarding the question whether a judicial assistant can conduct main hearings without supervision or presence of a judge. High court of Ljubljana ruled that the judge must be present at main hearings[5]. In another case, the High Court of Celje ruled that the judicial assistant can, without the presence of a judge, examine witnesses outside the hearings[6].

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

As already described, they have a wide range of duties, from very routine (e.g. working out the costs of proceedings) to highly intellectual tasks (e.g. research and drafting of the complete reasoning of the judgment).There is an informal consensus among judges that the final decision has to be made  by the judge who also bears the responsibility for the decision made. In practice, the duties of judicial assistants vary per court. Moreover, it can be argued that the duties of judicial assistants are heavily influenced by factors such as their knowledge and experience. The level of trust established between the judicial assistant and the judge he/she works for is equally important.

5.             Which duties belong exclusively to the judge? 

Final decision belongs to the judge who also bears the responsibility for the decision.

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

This is a sensitive issue. It is a fact that there is an increasing reliance on judicial assistants in Slovenian courts and their work can importantly affect judicial decision- making as one of their important tasks is research and case-law analysis as well as drafting of judgments. The law appoints judges with the responsibility to adjudicate, and hence, people expect that judicial decisions are taken under their sole authority. When it turns out that judicial assistants are regularly highly involved in the decision-making, this could raise questions about the legitimacy of this involvement. Ideally, a judge and a judicial assistant in the workplace should work together and the judge should not become someone who just edits the judicial assistant's draft. In Slovenia, most judges only limitedly rely on the advice of assistants and they are largely personally in control of the decision-making. But this rule is not without exceptions.

7.             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 no official data; there is only statistical data regarding the number of drafts (of procedural decisions as well as judgments) that are prepared by judicial assistants (and by judges).

Judicial assistants can be of huge assistance to judges, in particular in saving judges’ time by undertaking non-judicial tasks so that the judge can focus on decision-making. Judicial assistants can also contribute to the quality of the final decisions, mainly through legal research.

II. Organisation of judicial assistants

8.             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 at all courts (first and second instance courts, the Supreme Court, as well as the Constitutional Court).

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

Some courts have panels of professional and lay judges (labour and social courts, district criminal courts). Lay judges are not supported by judicial assistants.

10.         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?

Judicial assistants are usually assigned to a panel of judges because their number is not so high that they could be assigned to one judge individually. The current judicial assistants per judge ratio in local courts is 0,51 (0,51 judicial assistants per judge), in district courts 0,81, in high courts 0,52 and in the Supreme Court 1,47[7]. This means that in first and second instance courts one judicial assistant is on average assigned to two judges. On the other hand, in the Supreme Court each judge has one (and some two) judicial assistants. Judicial assistants are usually assigned to a judge/panel of judges by head of department.

1.             Who pays them?

All judicial assistants are part of the public sector which means they are paid by the state.

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

They are civil servants.

3.             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 fall into three civil service classes: senior justice adviser, justice councillor II and justice councillor I. The formal difference among these classes/posts is the level of difficulty of the tasks performed and the required level of experience (2 years for senior justice adviser, 6 years for justice councillor II and 7 years for justice councillor I). The vast majority of judicial assistants (at all instances) perform their duties in civil service posts as senior justice advisers. Some courts have also a limited number of justice councillors.

Both, judicial advisers and judges are part of the public sector salary system. Their salaries are determined according to salary grades as shown below:

Min. salary grade Value (EUR) Max. salary grade[8] Value (EUR) Senior justice adviser 36 1.737,79 46 2.572,34 Justice councillor II 42 2.198,84 52 3.254,84 Justice councillor I 45 2.473,41 55 3.661,25 Local court judge 47 2.675,25 52 3.254,84 District court judge 50 3.009,28 54 3.520,44 Judge at the High Court 55 3.661,25 58 4.118,41 Judge at the Supreme Court 60 4.454,47 61 4.632,64

The proportion between the salaries of judges and assistants depends on the position of the  judicial assistant and judge as well as the number of their promotions. For example, the proportion between the salaries of a local court judge and a senior justice adviser (both in min. salary grades) is 1 : 1,5, while the difference in salary of a senior justice adviser in max.  salary grade and a local court judge in min. salary grade is just 102,91 EUR. The proportion between the salaries of a judge and senior justice adviser (in min. salary grades) is the highest at the Supreme Court, namely 1 : 2,6.

III. Background and selection of Judicial Assistants

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

It is not a necessary part of the legal education in Slovenia neither a prerequisite for becoming a judge. However, the majority of newly selected judges come from the pool of judicial assistants.

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

All judicial assistants have a law degree and have passed a lawyer's state exam.

6.             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 have at least two years of legal work experience (this is one of the formal requirements). They can have different legal experience (for example as attorney-at-law trainees, judicial trainees etc.). They are not seconded judges.

7.             How are they selected?

Recruitment procedure is made by the court which recruits a judicial assistant. Usually candidates are selected through written application. An interview by the president of the court or by recruitment commission and/or practical tests regularly take place.

Sometimes judicial assistants are internally transferred to another court (usually from lower instance courts to high courts or the Supreme Court). Some judicial assistant are also selected from the pool of judicial trainees that have passed the lawyer's state exam.

8.             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? 

In the past, working as a judicial assistant was seen as a starting point for a judicial career. It was a short-term job, usually lasting a few years, until judicial assistant fulfilled qualifications for a judge.

 

Because Slovenia had one of the highest ratio of judges per capita, the number of judges is continuously decreasing[9]. This means that each year there are only a few new recruitments. For example, in 2016 there were 23 vacant positions  (273 candidates applied), in 2017 there were 28 vacant positions[10] (313 candidates applied).[11] The transition to a judicial career became harder and the judicial assistants careers are therefore prolonging.

Nevertheless, working as a judicial assistant is not yet perceived as a permanent career (although most of judicial assistants are formally employed for indefinite time). It is percieved as problematic that many judicial assistants leave for a better job opportunity[12]. 

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

There is no rule; they can become judges, lawyers (attornys-at-law), prosecutors, legal advisors in private sector etc.

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

It is a good way to gain legal experience, not only if you want to become a judge, but also for other legal professions (e.g. lawyers, prosecutors, state attorneys).

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

It is possible to be promoted in salary grades and title every three years (if conditions for promotion are fulfilled; these are set in the Public sector Salary System Act). It is also possible to be transferred to the civil service post of justice councillor II and justice councillor I. There are also internal transfers from lower to high courts/the Supreme court which are also seen as promotions (although the salary might remain the same).

IV. Status and regulation of judicial assistants 

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

No.

13.         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?

General duties of judicial assistants are determined in Court's Act (Art. 54). Special duties are also set in some other acts, e.g. in Civil Procedure Act (Art. 15/3, 163, 270), Claim Enforcement and Security Act (Art. 6/2, 6/3), Financial Operations, Insolvency Proceedings and Compulsory Dissolution Act (Art. 53/3).

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

A relationship between a judge and a judicial assistant is a very personal one. It is based on mutual trust and respect, competence, loyalty, discretion and confidentiality.

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

There are no special rules concerning the independence and impartiality of judicial assistants.

Civil procedure Act in Art. 75 states that the provisions on disqualification of a judge and lay judge shall apply, as appropriate, also to the challenging of judicial assistants. The motion for disqualification of a judicial assistant shall be decided upon by the judge.

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

They can become members of an association of judges, but it is not common.

V. General considerations about the support of judges

17.         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 general it is believed that judges would need more support. As stated in the Annual report 2017 of the Supreme Court one of the future objectives is to further improve the support of judges, also by increasing the number of administrative and judicial assistants. It is often cited that one of the main goals of Strategy Europe 2020 is 42 judges per capita and 4,3 supporting personnel per judge. This means that the number of judges would have to decrease until 2020 for approximately 20 and the number of supporting personnel would have to increase for approximately 220[13].

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

One of the challenges is the division of duties between judicial assistants and other administrative assistants (especially justice advisers). In 2004, a new civil service post of a justice adviser was introduced[14] (similar to “Rechtspfleger” in Germany), while judicial assistant gained new duties (to conduct hearings under the guidance of a judge and perform other work by order of a judge). It was explained[15] that judicial assistants are working at courts mainly because they want to proceed their careers as a judge and are interested in duties that are closer to decision-making process (drafting decisions, conducting hearings), and less for other duties for which they are also overqualified. The latter should be handed over to other assistants. The division of duties is still seen as problematic. As mentioned, the tasks of some judicial assistants could be classified as routine (court fees, legal aid, costs of the proceedings etc.) and could be executed by justice advisers.

 

One the other hand, the salary of judicial assistants who are performing highly intellectual duties (as senior justice advisers) is not stimulating and leads to turnover of employees. One of the strategies of the Supreme Court is therefore to increase the number of  justice councillors at courts to make the job of judicial assistant more appealing[16]. Furthermore, it is debated weather working as a judicial assistant should become a permanent career with proper opportunities for advancement (e.g. from lower instance courts to high courts/the Supreme court and to more demanding posts).

Another question is weather allocation of certain duties from judges to judicial assistants is appropriate regarding the fundamental difference in their position (see under 9).

Appendix:

Regulations concerning the status and duties of judicial assistants