CCJE(2019)2Prov4

Strasbourg, 13 August 2019

CONSULTATIVE COUNCIL OF EUROPEAN JUDGES (CCJE)

Working Document

Introduction

1. 37 member states (Albania, Andorra, Austria, Azerbaijan, Bosnia and Herzegovina, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Finland, France, Georgia, Germany, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxemburg, Malta, Moldova, Monaco, the Netherlands, Norway, Poland, Romania, Russia, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom) answered the questionnaire. This report summarises the responses received and adds a few observations of the expert.

2. The responses show an impressive variety of systems of organising support for judges in their adjudicative work: Judicial assistants are hired for ten months or for life, they can be assigned to individual judges or organised in pools at the courts where they serve. They can be judges, civil servants or employees. Even more impressive are the different ways in which assistants can be involved in adjudicative work. While some mainly do research or proofread judgements, others hold hearings,[2] have an advisory vote in deliberations, and draft and sign judgements.[3] Given this great variety, the following summary provides only a superficial overview. More detailed information can be found in the footnotes. For still more information, the reader is invited to refer to the member states' replies indicated in the footnotes.

3. The responses show that judicial assistants are of increasing importance in many member states and considered useful by judges in all responding member states. However, the responses also show that the proximity of judicial assistants to the drafting and decision making process requires a discussion of their influence and impartiality.

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) administrative assistants

4. As expected, there are administrative assistants in almost all legal systems.[4] The responses show different organisational approaches. In some countries, administrative assistants are organised in service units,[5] in other countries, a personal administrative assistant is assigned to each judge or shared by two.[6] Such assistants perform all the functions the questionnaire lists under question 3 at the end. However, the replies also show that distinguishing between administrative assistants and judicial assistants is not always easy. One member state described assistants with mainly administrative functions as judicial assistants.[7] In other cases, persons working on judgements and files under close supervision of the judge were classified as administrative assistants and not discussed further.[8] In both cases, such persons may also perform duties connected to the adjudicative process and thus be described as judicial assistants.

b) by judicial assistants

5. Almost all member states replied that their judges are supported by judicial assistants.[9] Only Liechtenstein stated that its judges were only supported by administrative assistants. However, the answers of one country indicated that assistants might also be classified as administrative assistants under the terminology of the CCJE.[10]

6. In many member states, judicial assistants have their origin in court scribes. The gréffier, greffe or «Letrado de la Administracion de Justicia » (LAJ)[11] in Romanic legal systems (France, Luxembourg,  Andorra, Monaco, Belgium, Spain) trace their roots back to this tradition. Traditionally, these persons took the minutes of court hearings and wrote court decisions down like a secretary.[12] Today, they often undertake functions of a more substantial legal character.[13] The influential Swiss Gerichtsschreiber or gréffier should be mentioned here. The Gerichtsschreiber has an advisory vote in deliberations and drafts and signs judgements. Dutch courts also employ greffiers with influential duties.[14] In other countries, the roots of judicial assistants’ schemes might be seen in educational traineeships for future judges or judges working towards promotion as in Germany, and Albania. However, irrespective of these traditions, the responses show that in many member states, the support of judges by judicial assistants is a rather recent phenomenon[15] or has grown recently.[16]

7. The answers show an impressive variety of assistants,[17] which will be discussed in more detail below. Such variety was especially noticeable in countries with a federal court structure.[18] In some countries, there are only judicial assistants at the highest courts[19] or specialised courts.[20] Even if there are judicial assistants throughout the system, the highest court often employ assistants with a specialised role. Such assistants may serve as advisors to judges and/or perform valuable services in the sifting of applications for appeal or constitutional review.[21] In some member states, periods of work as a judge's assistant at a court are a mandatory part of legal education[22] or serve as a stepping stone for becoming a judge.[23]

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.

8. The responses show similar rationales for employing administrative assistants in all member states: Judges should be free from distracting administrative tasks for which they are overqualified.[24] This way, productivity could be improved.[25]

9. As to the employment of judicial assistants, the rationales brought forward by the member states can be summarised as follows:

·         improving the efficiency of courts

·         educating young lawyers and (future) judges

Many member states argued that the judicial system could be made more efficient if judges were not burdened with less demanding tasks.[26] It was more (cost) efficient to leave the preparation of procedural decisions, research and drafting to the lowest competence level.[27] As the Swiss response explained: In order to grant judges the time and energy necessary for making decisions, judges should be supported by people with legal training.[28] The Netherlands pointed out that judicial assistants function as a sounding board for judges, especially when there’s only one judge presiding over a case.

10. Some member states mentioned that the number of assistants had been increased or judicial assistants schemes introduced in order to cope with an increased number of cases or severe backlogs.[29] In this situation, there were two possibilities: First, increasing the number of judges. Second, member state could react by employing judicial assistants. However, the first route might have decreased of the social status of judges and increased costs. Therefore, often, the second route was chosen.[30]

11. In many countries, the employment of judicial assistants also serves an educational purpose. In some countries, serving at a court is a mandatory part of judicial education.[31] In this case, judicial assistant provided assistance as a "nice side effect".[32] However, the quality of the assistance depended on the length of the assignment and the competences of the candidate.[33] In those countries where work at a court is not mandatory and where judges are recruited among advocates, working as a judicial assistant can provide valuable insights "from behind the bench".[34] In countries with a career judiciary, the work of judicial assistant is often seen as a training period for people who want to become judges.[35]

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[36]

·         Discussion with the judge(s)[37]

12. A Judicial assistant who only performs these duties is not very much involved in the adjudicative process. Research is provided and the judicial assistant may act as a "sounding board" for the judge, if he or she discusses legal problems with a judge. Since some people prefer "thinking out loud" over "thinking on paper" a judicial assistant serving as a sounding board can be useful for the judge, especially if the judge is not part of a panel of judges. For a young lawyer, this can be a great learning experience. However, it is interesting to note that participating in discussions with a judge was reported less frequently in responses compared to providing research or participating in the drafting process.

a. Research and analysis

·         Memos with a summary of the facts of a case and the relevant law[38]

·         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[39]

13. By providing a memo with a suggestion on how to solve a case, the judicial assistant becomes more involved in the decision making process. In some member states, preparing such a memo can also be the regular work of the judge rapporteur preparing deliberations with colleagues in his panel.[40] In the majority of member states, this duty can be performed by judicial assistants. Interesting is that some countries do not or do not regularly allow this.[41]

b. Involvement in the selection of cases for appeal and constitutional review

·         Memos summarising the facts and the relevant law and including a suggestion if a case should be accepted for appeal/constitutional review[42]

14. Such duties are typically found when judicial assistants work at Supreme or Constitutional Courts. Especially when unrepresented parties make such an application and a great number of applications flood such courts, judicial assistants provide help in the "sifting" of applications. In such positions, judicial assistants can be vital for the functioning of an overburdened court.

c. Involvement in the drafting/presentation of decisions

·         Drafting parts of the judgment, if so which parts? Facts, certain points under discussion?[43]

·         Drafting complete judgments[44]

15. Judicial assistants in most member states are involved in the drafting of decisions. Certain member states do not allow this, however.[45] See for details question 4.

·         Proofreading of decisions, maybe including discussing certain points with the judge/pointing out inconsistencies etc. [46]

·         Reading draft judgments of other judges and discussing them with the judge[47]

·         Crosschecking references[48]

·         Drafting press releases[49]

·          Drafting procedural decisions[50]

d. Independent work on cases

·         Deciding procedural issues such as appointing an expert or deciding on costs of proceedings[51]

·         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.

16. In a small number of member states, judicial assistants can conduct hearings and work on small cases more or less independently. In many cases, the judicial assistant's decisions require the approval of a judge. Such opportunities are open in Bosnia and Herzegovina[52] Croatia,[53] the Czech Republic,[54] Finland,[55] Iceland, Slovenia[56] and Sweden.[57] In Malta, judicial assistants collect evidence for judges.

e. Administrative work

·         Writing protocols in hearings[58]

·         Organisation of files[59]

·         Correspondence with parties[60]

·         Preparing the official copies of decisions, preparing decisions for publication (esp. including anonymisation)[61]

·         Collecting statistical data[62]

17. Even though the above mentioned duties are often performed by administrative assistants and not judicial assistants, there is considerable overlap. In some countries, there are different groups of assistants of which some are more engaged in the administrative work of the courts. An example is the gréffier in the Belgian system, who has an equivalent in many Romanic legal systems (Andorra, France, Luxembourg, Monaco, Spain). The Belgian reply explained that the gréffier had to fulfil a unique role independent of the judge. The gréffier took the minutes of the hearings, reporting and recording the judge’s actions and keeping the registry and public registers, but also work on procedural questions. In the French response, le greffe was described as an administrative assistant. One of the main duties of the influential Swiss Gerichtsschreiber and Dutch greffier is also to write the official protocol in hearings. 

18. In some member states, the role of judicial assistants at courts of first instance and at the highest courts differs. While those at the higher courts often provide support in research and drafting described under a, b and c, judicial assistants at lower courts also provide support in the areas under d and e.[63] In other countries, however, tasks from all areas might be given to judicial assistants.[64] In some member states, judicial assistants are also responsible for the enforcement of the decision or orders.[65]

19. Many responses stated that the tasks given to judicial assistants often depended on the working relationship between a judicial assistant and a judge (or panel of judges).[66] It is therefore possible that judicial assistants perform more tasks unofficially which are not listed here.

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

20. The question is at the core of the interaction of judicial assistants and judges.[67] The responses show a great variety of approaches. In Finland, in cases without an oral hearing at the Court of Appeal, referendaries can even submit a dissenting opinion if a panel of judges does not follow their lead.[68] In other countries, judicial assistants do not participate in the drafting process at all. In common law countries like the UK and Ireland, writing a judgement is perceived as a more personal duty than in civil law systems. Therefore, in Ireland and the UK, a judicial assistant might only be asked to read the draft of "her" judge, suggest another wording or make suggestions on how to strengthen an argument.[69]

21. The role of judicial assistant in the drafting process varies considerably not only from country to country but also from court to court. [70] Moreover, there are likely different practices within the same courts. Especially where judges and judicial assistant work together closely, the question if and how much of a decision a judicial assistant is permitted to draft depends very much on the discretion of the individual judge or judges and the competence of the individual judicial assistant.[71]

22. In some countries, judicial assistant are involved in drafting. However, their work is limited to the facts or introduction and they work under close supervision of judges.[72] If a judicial assistant is asked to draft a complete judgement, there are still different ways to do it. judicial assistants might be asked to write complete decisions only in cases, where the case law is already well established.[73] In other countries, judicial assistants are regularly asked to draft all judgements.[74] If the judicial assistant is asked to draft a decision, the interaction between the judge and the judicial assistant might again vary. In some member states, there is usually a discussion with the judge with precise instructions before the judicial assistant starts working on the decision.[75] Belgium provided the structure référendaires use when they work on draft judgements.[76]

23. It is also possible that a judicial assistant is asked to prepare a memo suggesting the outcome of the case. This memo might be discussed with the judge or with a panel of judges before the judicial assistant is then asked to draft the decision according to the judge's wishes.[77] In other countries, the discussion can also take place after the judicial assistant has submitted a complete draft.[78] In some countries, judicial assistant prepare the entire document usually autonomously and submit it then for approval.[79] In the Netherlands, the judge and judicial assistant deliberate about the outcome of a case. That can be an extensive deliberation (especially when three judges preside over a case), but it can be as short as that the judicial assistants is asked to draft the judgment along the lines of the memo the assistants prepared on the case. Judicial assistants either solve upcoming questions themselves or confer with the judge. Judicial assistants work with some independence in the process. Major changes in the outcome of a case will be discussed with the judge beforehand, but including, excluding or changing certain considerations most likely will be done without consulting the judge.

24. In those systems where judicial assistants work on their own cases, they prepare everything and - if required by law - ask the judge then for approval.[80] In all member states, the judge is free to adopt, edit or cast aside the draft.

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

25. Being present in deliberations provides great learning opportunities for judicial assistants, especially if they are allowed to participate in the discussion. Moreover, if a judicial assistant is expected to draft a complete judgement, the understanding gained in the deliberations might be essential. In this situation, the judicial assistant might be perceived more as a colleague who has the greatest knowledge of "his" case, rather than a mere supporter. In the Netherlands, for example, judicial assistants are often expected to take an active role in the deliberations.

26. In most member states, judicial assistants are not present in deliberations.[81] Ukraine stressed the importance of the secrecy of deliberations for judicial independence. Russia and Ukraine both explained that the adoption of the judgement was a task which law reserved for judges alone.[82]

27. In some member states where judicial assistants are usually not present in deliberations, judges may decide to invite judicial assistants to join them.[83] In other member states, they are present but do not participate[84] or only when asked.[85] In still other systems, they participate in the discussion[86] and may even present their work there.[87] In Switzerland, judicial assistants participate at all levels. In the courts of appeal (usually) and in the Swiss Federal Supreme Court, they even have an advisory vote and are invited to express their opinion and sign the judgement. In Romania, judicial assistants are present, have an advisory vote and sign the record.

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

28. In public, the judge is in the centre of attention. In most member states, judicial assistants may be present in hearings as silent observers.[88] They usually are not allowed to ask questions. In some member states, judicial assistants must be present to write the official record of the hearing. Such judicial assistants do not usually ask questions.[89] In the Netherlands, however, judicial assistants are present during hearings, take notes and check with an eye on the memo of the case they have prepared if all the (important) questions have been asked. Most judges in the Netherlands inquire with the judicial assistant if they have any (additional) questions, and it becomes more and more common for judicial assistants to ask questions themselves, especially when there’s only one judge presiding over the case.

In those cases in which judicial assistants hear cases themselves and decide alone or under the supervision of a judge, they run the hearing and ask questions.[90] In some member states, judicial assistants are not present[91] or only present if "their" judges invite them.

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

29. In many member states, there are legal descriptions of the duties of judicial assistants.[92] While there is regulation in many countries, in practice, concrete duties depend on the informal agreement among judges and their court.[93] In Switzerland, history and region play a great role in the informal consensus among judges. In some countries there is only an informal consensus[94], in other countries not even that.[95] A judicial assistant’s employment contract can prescribe a judicial assistant’s duties.[96] Some member states have adopted specific rules, e.g. that judicial assistants should not draft decisions "without the support of the judge".[97]

8. Which duties belong to the judge exclusively?

30. Member states agree that the decision must remain with the judge and that the judge must conduct the hearing. The Netherlands summarised: "the judge has the final direction of the judgement." On other points, there was less agreement. Those member states in which judicial assistants are not permitted to be present in deliberations and/or to draft judgements placed these tasks under the sole responsibility of the judge.

·         deciding the case[98] (all procedural and material issues[99], according to Article 6 ECHR)[100]

·         writing the judgement,[101]

·         giving the judgement its final form[102]

·         responsible for the content of the judgement[103]

·         questioning the accused, [104] 

·         participating in deliberations[105] 

·         presiding in hearings[106] 

·         signing the judgement[107]

·         comply with rules of judicial ethics, disclose assets and obey anti-corruption legislation.[108]

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

31. Most member states express the view that judicial assistants saved judges time and improved judgements but did not influence decisions because judges controlled the decision and drafting process.[109] Member states also agree that deciding the case and the responsibility for it must and did remain with the judge, no matter the preparatory work done.[110] Bulgaria stressed that judicial assistants were mainly engaged in the preparatory stage, providing research and preparing draft judgement in routine cases. In Finland and in the canton of Zurich, judicial assistants can give a dissenting opinion and in all Swiss courts, they have an advisory vote. But according to the response, all this does not change the fact that the judge rather than the assistant's view is decisive. The reason why a judge's independence was guaranteed was that the judge provided justice objectively, correctly and without any inappropriate influence.[111] The judicial assistant had the right to express his view, but at the end of the day, he had to draft the decision how the judge wanted it.[112]

32. Member states where judicial assistants are not present in deliberations and do not write decisions, stressed these aspects when arguing that judges remained in control of their decisions.[113]

33. Some member states admitted that judicial assistants could gain influence over the decision - depending on the judges and quality of the assistant.[114] Belgium stressed that this was the will of the legislator and that judges were attentive to preserve their decision making power. The Netherlands[115] and Slovenia answered that this was a sensitive, difficult issue. Judge relied more and more on judicial assistants. Judges and judicial assistants should work together and the judge should not become someone who edited the judicial assistant’s draft. Otherwise, the legitimacy of judicial decisions might become questionable.[116] Switzerland described a delicate balance between judicial assistants and judges. A good judge knew how to benefit from the work of the judicial assistant without handing over the lead in the case. Some member states mentioned that judges had to "control" judicial assistants and their work.[117] Finland mentioned, however, that the workload of judges could influence how much judges were willing to accept or rewrite the draft of a judicial assistants.

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 ?

34. There are only two member states where official data about the usefulness of judicial assistants is collected: The Czech Republic[118] and the United Kingdom.[119] Croatia found that courts with judicial assistants have higher performance rates than those without them. In Poland, the number of judgements judicial assistants work on is evaluated every two years. The other answers stated that there is no official data or did not answer the question.[120] However, most answers stress the importance of judicial assistants to improve the quality and speed of the courts.[121] Where the work of judicial assistants serves an educational purpose, however, it is conceded that it takes time until judicial assistants save judges time.[122] Along this line, many answers point out that the usefulness of judicial assistants very much depended on the quality of the individual judicial assistant.[123] While this quality is usually high at the highest court, it can be considerably lower in lower 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?

35. In most member states, judicial assistants work at all courts and instances.[124] In some only at the top courts and[125]/or only the constitutional court,[126] or at specialised courts.[127] In Bulgaria, judicial assistants only work at courts with a particularly high workload as determined by the Supreme Judicial Council (SJC) Judges College. At present, judicial assistants are working at the Supreme Court of Cassation, the Supreme Administrative Court, the Constitutional Court – and at administrative, appellate and first instance courts with an especially high workload.

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

36. In the UK, lay judges are supported by a legal advisor. In Switzerland, lay judges in many cantons used to be supported by judicial assistants, the Gerichtsschreiber. However, apart from that, there is no support for lay judges by judicial assistants. Member states either do not have lay judges[128] or if they have them, lay judges must ask the professional judge for advice.[129]

13. How are judicial assistants organised? If there are different forms of organisation at different courts, please explain the different models.

37. As the question indicates, there are basically three different ways to organise judicial assistants by assigning one or more

·         to one judge individually: cabinet system[130]

·         to a panel or department of judges: panel system[131]

·         to the whole court: pool system.[132]

·         It is also possible to build teams of judicial assistants for special cases.[133]

38. Most of these systems could be found in the replies of most member states with the exception of the last one. This system is used at the International Criminal Court, where cases are so huge that they take years to work on and evidence is presented in thousands of documents.

39. Many countries use different systems at different courts. France pointed out that all models were used and that there was no unified, systematic approach.

14. Who pays them?

40. In all member states the state directly or via the court system pays judicial assistants. There was only one exception in the United Kingdom: There, the pilot judicial assistants scheme at the Commercial Court was funded by the Commercial Bar. This way, the money came from a private organisation rather than the state, but since all members of the commercial bar paid indirectly, there was no individual funding for individual judicial assistants. However, this means of payment was discussed among the members of the Commercial Bar. Some argued, judicial assistants should be paid by the treasury. Others argued that since public funds were not provided, barristers themselves needed to provide judges with help and young barristers with a unique working experience "behind the bench". In April 2019, however, the High Court of England and Wales announced the introduction of judicial assistants at all three divisions of the High Court. The funding of the new scheme will now be provided by the treasury.[134]

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

41. The responses show that judicial assistants can be employed as civil servants[135] or employees,[136] for a limited time or with long term contracts. These distinctions is not a mere technicality. In Ukraine, judicial assistants lost their status as civil servants in 2015 and became mere employees as "political advisors". The effects of this change in relation to the impartiality of such assistants shall be discussed further under question 28.

42. In Austria, judicial assistants can also be trainee judges. In Germany, judicial assistants are usually first or second instance judges who serve at federal courts for a limited time before going back. While they serve as judicial assistants, they keep their status as judges of the court they come from. In Albania, Bosnia and Herzegovina and Slovenia (here rarely used), this model exists as well.

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?

43. The numbers here differ considerably. It can be said in general, that the salary of judicial assistants is significantly lower than that of judges, from 20% to 90% of first instance judges at the beginning of their careers.[137] In many legal systems, a judicial assistants payment depends on rank and experience.

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?

44. In most countries, serving as a judicial assistant is no prerequisite to becoming a judge.[138] Only in a couple of countries, serving as a judicial assistant is a mandatory part of judges' education.[139] However, serving as a judicial assistant is often seen as the normal or at least usual stepping stone for becoming a judge.[140] Serving as a judicial assistant is often considered to provide very good preparation for becoming a judge. In such systems, the experience is considered favourably.[141]

18. What kind of education do judicial assistants have?

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 experiences, if so, in what areas?

45. Judicial assistants need to complete studies of law in all member states. In some countries, they must also have qualified for practice,[142] in others, they need a master's degree.[143] In some countries, judicial assistants can start their work directly after having finished their legal education.[144] In other countries, candidates should also have practical experience (or experience at university[145]) to become judicial assistants.[146] Working experience is of course also required in a system like Germany, where judicial assistants at the highest courts are seconded judges[147] three to five years after their initial appointment. Other countries have stressed that the experience of their judicial assistants varies a lot.[148] It is also important to note that in some systems judicial assistants are promoted from judicial assistant positions at first instance to higher courts.[149]

20. How are they selected?

46. In the majority of member states, judicial assistants are selected after an advertisement through public competition,[150] often including an interview with members of the judiciary.[151] Where judicial assistants are seconded judges, as in Germany, candidates are selected within the judiciary. In Poland, the selection competition is regulated by the ministry of justice. In some cases, a judge can select his or her judicial assistants or is at least heard in the process.[152]

21. How long do judicial assistants work in that capacity usually? Just for one or a few months, or years? Or is it a long-term/permanent career?

47. Here, two groups can be identified: first the group of countries - the majority - where serving as a judicial assistant can be a permanent career.[153] In such countries, judicial assistants often aim for another position, but may stay in the position of judicial assistants for a long time or even until retirement. The latter is the case especially in countries where the position of judicial assistants was expected to serve as a stepping stone to become a judge. If not enough new judges are hired, judicial assistants might get "stuck" in their position.[154] In the other group of countries, serving as a judicial assistant is a short term position, which also has an educational aspect.[155] In some countries, it is difficult to make this distinction, because contracts run for limited terms but can be renewed.[156] In such cases, it is difficult to decide if the position is seen as a permanent career without the benefit and security of permanent employment.

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

48. Former judicial assistants often become judges.[157] They also might become lawyers in other fields where the experience is valued,[158] especially litigants.[159] Seconded judges go back to their courts and might apply for promotions later.[160]

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

49. Member states have replied that the position might provide useful experiences to become a judge,[161] prosecutor, successful litigator or lawyer in other fields.[162] Others stated that it was an interesting position which provided unique challenges and insights "from behind the scenes"[163]. Others again stress good working conditions.[164] Some also mentioned that having served as a judicial assistant (especially at a superior court) was prestigious and could help one's career,[165] e.g. because of networking opportunities.[166]

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

50. If judicial assistants stay for a long time, they gain valuable experience courts do not want to lose. Therefore, member states which consider serving as a judicial assistant as a permanent career, often provide the opportunity for advancement and an increase in pay.[167] If this is the case, the position of judicial assistant can be described more as a civil service position than a prolonged, prestigious internship in the judiciary. Another way of advancement may be promotions from lower to higher courts as judicial assistant.[168] In the Netherlands, there might only be the opportunity to move horizontally, to other areas of law. The opportunity to work on cases more independently might also be perceived as an  advancement. Some countries stated the opportunity to become a judge was the only or major possible advancement.[169] It is interesting to note that in Slovenia, where many judicial assistants are stuck in their position because of a lack of new positions for judges, opportunities for advancement among judicial assistants were introduced.

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?

51. There are member states where judicial assistants swear an oath[170] or wear a gown[171] or do both.[172] The last is especially the case in countries of the Romanic tradition, where taking official minutes in hearings is a traditional duty of certain judicial assistants In most member states, judicial assistants neither swear (an oath) nor wear (a gown).[173]

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?

52. There majority of countries have regulated the status and duties of judicial assistants in statutes.[174] In Croatia, judicial assistants are even mentioned in the constitution. In some countries, there is no legislation,[175] so rights and duties are described in contracts, internal regulations, general rules concerning civil servants[176] and handbooks.[177]

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

53. Most member states denied that there were such informal rules.[178] Some referred to general rules of ethics[179] regulations or hierarchy.[180] Azerbaijan noted that there was an informal consensus about this relationship. Others stated that the relationship of judicial assistants and judges was determined by them on a personal basis.[181] Some explained such informal rules existed which demanded mutual respect for the role of the other.[182]

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

54. In some member states, the rules binding civil servants to impartiality apply also to judicial assistants.[183] Some countries explained that the rules on impartiality, e.g. requiring a judge to recuse himself, also applied to judicial assistants.[184] Some countries have special rules and duties.[185] Belgium explained that there was an informal rule requiring judicial assistants to not compromise the duty of a judge to provide justice in an impartial and independent manner. Files should be examined in a professional and objective manner.[186] Andorra remarked that judicial assistants were not independent themselves, only the judges they serve.[187] Some countries remarked that such protections where not needed because the judicial assistant lacked decision making power.[188] Sweden remarked that if judicial assistants served as judges, they had to be protected in the same way. In Bosnia and Herzegovina the Association of court and prosecutor’s professional associates and assistants adopted “Model Code of Ethics for Legal Associates and Advisors in Courts and Prosecutor's Offices in Bosnia and Herzegovina”. Bulgaria reported that judicial assistants were bound to keep as official secret the information of which they have become aware in the course of their work. They were also not free to give legal advice and opinions in connection with the official work and must always behave in conformity with professional ethics and not damage the prestige of the Judiciary.

Some member states just denied that there were such rules.[189]

55. Ukraine named the change in the legal status of judicial assistants as an important problem. Due to the adoption in 2015 of the new Law of Ukraine “On The Civil Service”, judicial assistants lost their status as civil servants and acquired the status of political advisory office staff. Accordingly, judicial assistants were not bound and protected by rules concerning civil servants. The Ukrainian response explained that this change caused risks for the involvement of judicial assistants in the drafting process. An initiative of the Council of Judges of Ukraine and The State Judicial Administration of Ukraine to introduce legislation governing the specific legal aspects of the civil service and political advisory office staff has not been successful so far.

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

56. In some member states, there are

·         special associations[190] for judicial assistants,

·         in others they can join the associations of judges and[191]

·         again in others, there is no opportunity to join an association[192]

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?

57. Many member states said judges needed more support by judicial assistances at all courts, especially at first instance.[193] With more support with judicial assistants, the quality and speediness of judicial decisions could (and should) be improved.[194] Belgium pointed out that the number of assistants and their importance should be increased and that judicial assistants should be involved in meaningful drafting work under the supervision and in close contact with the judge. The development of national and international guidelines on working methods and organisation could be an important factor in this process. Belgium stressed, however, that such measures should not be introduced as an alternative for appointing enough judges. Both Ireland and Latvia agreed that just increasing the number of judicial assistants was not enough. High turnover rates among assistants could reduce efficiency rather than increase it. Therefore, experienced assistants should be encouraged through higher pay to stay longer. Azerbaijan stressed the importance of improving the pay and quality of judicial assistants and suggested the introduction of a training programs for judicial assistance with the help of international cooperation. The Netherlands replied that it would be good to have more judicial assistants for support in the drafting work and that the assistants should earn more. However, financial restraints limited expanding the number and pay of assistants.

58. Slovenia mentioned the need to clearly distinguish the duties of judges, judicial assistants and the recently introduced justice advisors (like Rechtspfleger in Germany). Such advisors are less qualified than judicial assistants and work independently on simple tasks such as registration or cost orders. The idea was to assign the most simple tasks to such court advisors and to use the better qualified judicial assistants to support the judicial decision making process. The duties of such less qualified advisors could be extended to other routine tasks (court fees, legal aid etc.). However, since judicial assistants have recently been allowed to work on cases and conduct hearings more independently under the supervision of the judge, the division of duties was still unclear.

59. Some member states requested more specialised judicial assistants.[195] For example a special pool to keep courts up to date on developments in different legal areas, in particular the case-law of the ECtHR.[196] France recommended hiring experts in fields outside law. Law firms hired financial experts, for example, and judges needed the same level of support to adequately deal with cases in the area of financial law.

60. Italy strongly argued in favour of providing judicial assistants in all Italian courts. The support of interns and honorary judges was not enough to allow judges to reduce backlogs effectively. The Italian response referred to CCJE Opinion No. 6 (2004) para 65 according to which member states needed to provide judges "with assistants, with substantial qualifications in the legal field ("clerks" or "referendars"), to whom the judge may delegate, under the same judge's supervision and responsibility, the performance of specific activities such as research of legislation and case-law, drafting of easy or standardised documents, and liaising with lawyers and/or the public."

61. Some member states considered their support by judicial assistants enough.[197] Hiring more could entail the risk of destabilising the delicate balance between judges and judicial assistants.[198] A number of member states stated that more judges rather than more assistants were necessary.[199] Ireland and the UK[200] also remarked that unfilled vacancies (UK) and a low number of judges resulted in considerable pressure on judges. Latvia added that judges needed more self-esteem rather than more support.

62. Bulgaria reported that in February 2019 (following a SJC Judicial Administration Commission proposal - based on judges’ workload and possible reforms to ensure efficiency of justice analysis) the Supreme Judicial Council Judges Colleges adopted a decision to have a working group elaborate a new concept of the role and duties of judicial assistants and to propose legislative changes. The goal was to reallocate tasks between judges and well-trained assistants in order to relieve judges from basic but time consuming duties. One of the ideas was to delegate the administration of cases functions (e.g.. exchange of documents and notifications, archiving cases) to judicial assistants. This way, judges could concentrate more fully on their real adjudicative work.

63. Some countries also pointed out that administrative staff was insufficient, which placed more and more administrative burdens on judges.[201] Many also mentioned a lack of administrative staff, functioning IT systems, support and equipment,[202] technical equipment[203] and translation services.[204] Some also mentioned the need to refurbish buildings and courtrooms.[205]