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.

-          In the Swedish system the involvement of assistants is considered a substantial contribution to the efficiency and quality of the judicial process.

-          There is a widely held belief that an administrative or secretarial involvement of assistants is desirable from the managerial point of view, as it will enhance the efficiency of adjudication.

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:

The main duties and tasks performed by the judicial assistants (law clerks) consist primarily of:

·         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 and a suggestion of the judicial assistant how the case should be decided

·         Drafting complete judgments (normally in the Administrative courts)

·         Drafting procedural decisions

·         Conducting hearings and deciding simple cases autonomously, for example concerning enforcement, or simple criminal cases. They are not allowed to do this at the beginning of their employment. In criminal cases the decision are made together with lay judges.

·         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

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

-       Usually the judicial assistants in Administrative courts do the first draft of the judgment. They sometimes do it in the General courts.

-       Even if judges delegate the drafting of judgments to their legal assistants, they still closely monitor and edit their writing.

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

-       Although judicial assistants do not have an official vote during deliberations they are still allowed to participate in the deliberation process.

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

-       The judge is perceived as the core decision-maker at the public hearing. Consequently, the judicial assistants have a more limited role during the hearings. The duties of judicial assistants during the hearings consist primarily of the traditional tasks of providing administrative assistance and support to the judge or the panel of judges.

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 most important duties and responsibilities of law clerks are formally established. Law Clerks Board has issued a regulation that specifies the duties and tasks that must be assigned to a law clerk, Law Clerks Boards regulation regarding legal clerkship at the court, Notarienämndens föreskrifter för notarietjänstgöring vid domstol (DVFS 2013:11).

-       According to paragraph 3 of this regulation the main responsibilities and tasks of law clerks are to analyze facts and legal issues of a case, prepare memos/summaries of the case files, keep minutes of court sessions and assist at court hearings or other judicial proceedings, participate in deliberation sessions, write draft judgments and other legal documents.

8.         Which duties belong exclusively to the judge?

-       Judges are exclusively responsible for conducting hearings and for adjudicating cases pending at courts. Consequently, it is an exclusive duty of judges to preside over trials and court hearings. Judges have also the overall responsibility for managing the legal procedure and they remain principally in control of the decision-making process to ensure that the outcome is fair and follows the law.

-       In some types of cases (routine cases or cases of less complicated nature) the Chief Judge can appoint a law clerk to under the clerk´s own responsibility perform the duties of a judge. The legal basis for the Chief Judge to appoint law clerks to decide cases independently is set forth in The Ordinance with Instruction for the administration courts (paragraphs 20, 20 a and 21) and in The Ordinance with Instruction for the general courts (paragraphs 17 and 18).

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

-       As deliberations essentially consist of exchange of arguments, a well-presented argument by the assistant can influence the outcome of the decision-making process.

-       Another aspect that can provide assistants powerful position is their involvement in the process of writing judgments. Especially in the Administrative courts, assistants are often allowed a large amount of autonomy in writing judgments. Consequently, even though the judge dictates the general direction of the reasoning the assistant may still exercise considerable influence.

-       Nevertheless it is difficult to appreciate the actual extent to which assistants can influence the judgment-writing process. This might depend on many factors, as, for instance, the assistants´ competence together with the collaboration or the writing relationships judges have with their assistants.

-       In summary, it can be stated that the purported degree to which judges actually rely on their assistants to draft judgments varies considerably.

-       Even though judgments are penned with the assistance of legal clerks, by retaining control over the writing process, judges actually make sure that they remain the ultimate authors of their judgements.

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 no official data available within the Swedish National Courts of Administration in regard to the question of usefulness of judicial assistants in facilitating judges’ work.

-       In the Administrative courts judges usually are provided memos prepared by judicial assistants. These documents primarily serve as summaries of the case files with the aim to help judges to prepare for the hearing and the subsequent adjudication of a case. These memos are frequently employed by the Administrative court judges and it is widely agreed upon judges that being provided a memo saves time and helps to use “judge resources” in a more efficient way. The General courts do not have the same assistance from judicial assistants, since they do not at all have as many judicial assistants as the Administrative courts.

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 Sweden the judicial assistants are employed at all three court instances.

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

-       The lay judges in Sweden do not benefit from the support of 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? 

·         Or are they part of a pool of judicial assistants serving the whole court? If so, what is the ratio judge/judicial assistant?

-       Normally judicial assistants are not assigned to specific judges but work for all judges within the same department.

-       The ratio judge/judicial assistant varies considerably from court/instance to court/instance, depending largely on the size of the court in question.

·         Or do they work in teams put together for certain cases? If so, what is the ratio judge/judicial assistant?

14.      Who pays them?

 

-       The law clerks are paid by the court at which they serve. Salary and employment conditions are regulated in the customary manner by means of a collective bargaining agreement between the Swedish trade union for university graduates (Jusek) and the Swedish National Courts Administration.

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

-       The law clerks are considered as 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?

-       The law clerks receive a monthly salary of 27 200 Swedish Crowns (SEK) as of the 1 of April 2018. Their salaries have two fixed pay levels. After 12 months law clerks move over to a higher salary level of 29 400 SEK.

-       The so called carrier clerks (reporting clerks and drafting lawyers), which are employed with their respective court, receive a median salary of approximately 35 000 SEK.

-       The average salaries earned by judges are a little bit more than twice as high at the average wages of the law clerks.

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?

-       All judicial assistants have similar educational background.

-       The possession of a law degree is one of the admission requirements that must be met to be eligible to apply for the position of a judicial assistant.

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?

-       The work experiences of judicial assistants are divers. Among assistants working as reporting clerks or drafting lawyers are highly skilled lawyers with long legal experience in public or private sector industries.

-          

20.      How are they selected?

-       There is a specific regulation in place regarding the law clerk selection process.

-       The law clerks are selected primarily from recent law graduates. Superior academic credentials are often a prerequisite to employment.

-       Reporting clerks (in the Administrative courts) and drafting lawyers (in General courts) are selected by the courts themselves. They usually possess greater legal experience.

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?

-       A position as a law clerk is a fixed-term employment with a training dimension. Law clerks are appointment for a period between 1 ½ and 2 years.

-       The reporting clerks serving in the Administrative courts and drafting lawyers serving in General courts are employed by the courts themselves. Typically the duration of their employment is not determined in advance, in contrast to the time-limited employment of law clerks.

-       There are no statistics regarding the average employment duration of judicial assistants. Some of them work in this role for many years (so called permanent carrier clerks) while others spend less than two years working in this position.

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

-       Some law clerks, after having completed judicial clerkship, start associate positions at law firms or work for other public authorities/agencies.

-       Only those with best credentials are admitted to apply for participation in the Swedish Legal Clerkship program (the Swedish term is “Fiskalsutbildning”).

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

-       The academic nature of the work along with the prestige associated with clerkship positions are some of the main reasons why there are always lots of applicants.

-       In addition, clerking gives a young lawyer a unique opportunity to gain perspectives on litigation, advocacy, and lawyering in general “from the other side of the bench” (i.e., from a judge’s vantage point), which is a perspective that only relatively few lawyers have and is something that the law clerk will reflect in his/her future work and will remember for the rest of his/her life.

-       Judicial clerkships are also highly research- and writing-intensive positions, which means that the law clerks must possess excellent writing and research skills as well as the ability to assimilate and comprehend complex law matters. Hence, there is no doubt that this kind of job significantly dresses up a resume.

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

-       When it comes to permanent carrier clerks, such as some reporting clerks and drafting lawyers, the opportunities for advancement are very limited. Sometimes more experienced clerks, as a next step in their carrier, apply to join the training program for judges (the Legal Clerkship program).

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 judicial assistants are obliged to swear an oath. No special court uniform is required to be worn at the Swedish courts in general.

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 status of law clerks is laid down in a special regulation, Notarieförordning (1990:469), the Swedish law clerk regulation.

-       The main duties of law clerks have been established in another regulation, Law Clerks Boards regulation regarding legal clerkship at the court, Notarienämndens föreskrifter för notarietjänstgöring vid domstol (DVFS 2013:11). This regulation has been issued by the Law Clerk Board acting according to the delegation of power under Article 11 of The Ordinance with Instruction for the Law Clerk Board, Förordning (2007:1076) med instruktion för Notarienämnden.

27.      Are there informal rules governing the relationship between judge and judicial assistants? No.

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

-       In certain type of cases law clerks can be appointed as acting judges. Consequently the same rules will apply to them as to the permanent salaried judges.

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

-       At each court there is a special association for law clerks representing their interests. The Swedish name for this association is “Notariekollegiet”.

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?

The General courts could be more efficient if they could have more law clerks.

31.      Are there certain challenges that your member State faces as regards the support for judges which have not been mentioned so far? No.

Appendices:

·         Notarieförordning (1990:469), the Swedish law clerk regulation

·         Law Clerks Boards regulation regarding legal clerkship at the court, Notarienämndens föreskrifter för notarietjänstgöring vid domstol (DVFS 2013:11)