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

The Law of Ukraine “On the judiciary and status of judges” provides that every judge shall have an assistant (assistants). It means that the institution of the judges’ assistants – their status and conditions of work – is determined by law in Ukraine. The assistant of a judge is a part of the advisory officestaff in the court, which ensures performance by judges his/her judicial duties.

Moreover, the Regulation on the Judges’ Assistants provides, that the president of the court and his/her deputies have assistants, which ensure performance their administrative and judicial duties.

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.

Judges select assistants independently. But, the person, which wants to be an assistant, should meet certain requirements: to be a citizen of Ukraine, having a degree in Law and fluent in the official language.

The assistant of a judge is appointed by the chief of staff of the respective court based on the proposal of the judge.

3.         What kind of duties judicial assistantshave at the courts in your member State? If they perform different duties in different courts, please explain these duties separately. Such duties may include:

·         Research, maybe summarised in a memo

·         Discussion with the judge(s)

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

·         Memos with a summary of the facts of a case and the relevant law and a suggestion of the judicial assistant how the case should be decided

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

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

·         Drafting complete judgments

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

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

·         Crosschecking references

·         Drafting press releases

·         Drafting procedural decisions

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

·         Conducting hearings and deciding simple cases autonomously, for example concerning enforcement, or simple criminal cases. If so, please specify if a judge has to approve the decision or if the decision is taken by the judicial assistant alone.

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

-       Writing protocols in hearings

-       Organisation of files

-       Correspondence with parties

-       Preparing the official copies of decisions, preparing decisions for publication

-       Collecting statistical data

Today in Ukraine duties of the judicial assistant are listed in the Regulation on the Judges’ Assistants. So, judicial assistant:

-       selects the legislation and the case law, that are requires for certain proceedings;

-       joins to the organisation of files, by the order of judge drafting judgments, letters, requests and other materials related to certain proceedings;

-       prepares the official copies of judgments for sending it to parties and controls its timelines;

-       controls timelines of the expert researches and pursuant to decisions by police on the delivering suspects to the court, and in case of non-enforcement of judgments, drafting the proper notifications;

-       prepares drafts of instructions from the court for the enforcement by courts of other states of separate procedural actions, the delivery of judicial documents, the extradition of offenders to the territory of Ukraine;

-       facilitates the registration, execution of orders of courts of foreign states in accordance with the Convention on Legal Aid and Legal Relations in Civil, Family and Criminal Cases, other international legal treaties of Ukraine on legal aid, ratified by the Parliament of Ukraine;

-       executes other orders of the judge, that are related to the judicial cases.

These duties are the same for courts of all instances and specialisations.

In practice, as usual, this workload is divided among the judge and his/her assistant in different ways.

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

The judicial assistant research the case, which is pending before the judge and after that drafting the judgment. In case of any questions during the case researching, assistant discussing it (asking advice) with the judge.

There is no clear border if the assistant drafting the complete judgment or only one of its part (introduction, reasoning, resume). This issue is at the discretion of the judge.

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

Ukrainian legislation provides, that the secret deliberation room is one of the guarantees of judicial independence and impartiality. For ensuring of the secret deliberation room nobody could be there except the personal composition of the court, which is considered the case. It is forbidden not only be in the deliberation room but temporarily enters it too. The judicial assistant does not a judge, he/she does not a part of a judicial panel and accordingly does not able to participate in the discussions on the case issues and adopting the certain judgment in the deliberation room.

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

The judicial assistants are able to present in hearings but it is not their duty. Also, the judicial assistant may serve as the secretary of a court session, in case of his/her absence by the order of the judge.

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

All duties of the judicial assistant are enshrined by the Regulation on the Judges’ Assistants, that is approved by the Council of Judges of Ukraine. But, in practice, as mentioned above the workload is divided among the judge and his/her assistant in different ways.

8.         Which duties belong exclusively to the judge?

The following duties belong exclusively to the judges:

-     fairly, impartially and timely consider and resolve lawsuits according to law, in compliance with the principles and rules of judicial proceedings;

-     comply with the rules of judicial ethics;

-     submit a declaration of judicial integrity and declaration of family relations of a judge;

-     not to disclose information that constitutes a secret protected by law, including the secret deliberation room and hearings in camera;

-     comply with and adhere to restrictions established by anti-corruption legislation;

-     submit a declaration of a person authorized to perform functions of the state or local self-government - financial disclosure statement;

-     report interference in their work as a judge related to the administration of justice

-     confirm the legality of the source of a property when undergoing qualifications evaluation or under disciplinary proceedings against a judge.

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

The role of the judicial assistant is to minimise the time of the judge for analysing the legislation that will be the base of the judgment. Accordingly, the result of the assistant’s work (selection the legislation, the case law, drafting requests, letters, and other materials, related to the proceedings, drafting the judgments and other procedure documents that are adopted by a judge) has a direct impact on the judgments of a judge.

In fact, drafting the judgments the assistant does not serve as a judge but facilitates his/her work. Because the judge has a final right to adopt the draft prepared by the assistant with or without the changes. There is no binding force for the judge of the draft of judgment prepared by the assistant.

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 regarding the work of the judicial assistant. But, in our opinion, devolving the part of responsibilities (drafting the judgments) to the judicial assistant improves the efficiency of the judge. Moreover, the judicial assistant partly serves as additional secretary. That is why the increasing of the judicial workload has been made possible by the establishment of the post of the judicial assistant. It also has economic benefits, because assistants make the high-paying judges free from the simple work (increased capacity of the system).

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?

All judges of all courts, including the Constitutional Court of Ukraine, have their assistants.

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

The Constitution of Ukraine provides that the justice in Ukraine is administered by judges, and in cases determined by law, the justice is administered with the participation of jurors. A juror is a citizen of Ukraine, who, in cases envisaged by the procedural law and upon his/her consent, decides on cases as part of the court or is engaged in rendering justice. Ukrainian legislation does not provide the ability of jurors to have a judicial assistant.

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

·         Are assistants assigned to one judge individually? If so, how many assistants work for each judge? 

·         Or are they assigned to a panel of judges? If so, how many judicial assistants work for each panel? 

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

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

Ukrainian legislation provides, that every judge has an assistant. It means that the assistant assigned to one judge individually. The judge selects his/her assistant independently. In exceptional circumstances, the judge who has the highest workload in the court could have an additional assistant.

Each judge in the Constitutional Court of Ukraine has the judicial assistant and two research consultants, which are appointed by the chief of staff of the court based on the proposal of the judge.

14.      Who pays them?

The work of the assistants is paid by the State. The position of the assistant is under the scope of the Governmental legal acts on the remuneration of the political advisory office staff include positions of assistant in the judiciary system.

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

During the last four years the status of the judicial assistant in Ukraine has been seriously changed. So, due the adopting the Law of Ukraine “On the public service” in 2015, judicial assistants miss their status of the public servants and become a part of the political advisory office staff.

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 ratio of remuneration of judges to assistant salaries is:

-     the basic amount of the judicial assistant salary in courts of the first and appeal instance is 1/6 of the basic amount of judicial salary of the respective court;

-     the basic amount of the judicial assistant salary in the Supreme Court is 1/12 of the basic amount of judicial salary.

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?

Ukrainian legislation provides some requirements for a person, who is going to be a judicial assistant. The judge’s assistant shall be a citizen of Ukraine having a degree in Law and fluent in the official language. Assistants of justices of the Supreme Court should also have at least three years of professional activity in the field of law.

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?

As mentioned above, one of the main requirements for a candidate to be appointed on the position of the judicial assistant is having a degree in Law.

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?

There is no mandatory work experience for judicial assistants to the judges of the first and appeal instances (unlike assistants of the Supreme Court judges - see paragraph 17). However, given that the judges independently select assistants, it is important that the person applying for the position of the judicial assistant has the practical skills in the work and the desire to self-improvement.

In addition, the law provides the possibility for candidates on the position of the judicial assistant to intern in order to gain practical experience, check the professional level and business qualities of these persons.

20.      How are they selected?

The assistant of a judge is appointed by the chief of staff of the respective court based on the proposal of the judge without any special competition.

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?

The judicial assistant appointed for the term of office of a judge, but no longer then judge’s presence in the judicial staff.

Assistant of the president of the court and assistant of the deputy president of the court appointed for the term of office of a president and his/her deputy.

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

In the case of a long (more than two months) absence of a judge, as well as from the moment of termination of the powers of a judge on the administration of justice, dismissal of a judge from a position, judicial assistant, according to his consent, upon the order of the chief of the stuff of the court, may be transferred to another position of the court which does not belong to civil service positions.

In addition, in certain cases, the assistant may serve, for a certain period, as an additional assistant of another judge (judges), who has the highest current judicial load, which is based on the submission of the relevant judge and the assistant's personal statement upon the order of the chief of the stuff of the court.

If there is no consent of the assistant to be transferred to another position of the court or to serve as an additional assistant to another judge, or if there is no opportunity to transfer to another position in the court of the court, he/she is going to be dismissed.

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

The work on the position of the judicial assistant is included in the length of legal experience. To be a judicial assistant means to make your theoretical and practical knowledge deeper.

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

The position of the judicial assistant is in fact the first step towards the post of professional judge, since it is in this post that it is possible to gain enormous experience, which allows you to acquire the skills of correct legal thinking and to evaluate any legal situation objectively. Moreover, the High Qualification Commission of Judges of Ukraine (the body responsible for selecting qualified lawyers and conducting a competition for the position of a judge) introduced “concessional conditions” (shortening the period of training at the National School of Judges) for judicial assistants who wish to become professional judges.

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?

Since 2016, judicial assistants have lost the status of public servants in Ukraine and have acquired the status of the political advisory office staff. The mentioned changes are introduced on the grounds that assistants do not perform functions related to ensuring the state's activities, but provide the work of a particular judge, that is, they help to carry out the functions of the state indirectly. Thus, with the loss of the status of a civil servant, judicial assistants were deprived of the duty to take an oath.

In addition, since the beginning of the existence of the institution of the judicial assistants in Ukraine, the question of the necessity of introducing uniforms for assistant hasn’t been raised. This is due to the fact that the assistants of judges do not participate in the court proceedings, and accordingly do not need any form of official dress.

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?

Yes. In 2018 according to the Ukrainian legislation the Regulation on the Judges’ Assistants has been developed and approved by the Council of Judges of Ukraine (the body of the judicial self-government). This Regulation establishes the uniform conditions of work and status of the judicial assistant.

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

Such rules do not exist.

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

The requirements for independence and impartiality are addressed only to judges. The purpose of the assistants' work is to perform technical functions for the provision and assist the judges. Since the judge's assistant does not consider the case and does not take any decisions, they are not under the rules of independence and impartiality.

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

In 2016 a public association “The Association of Judicial Assistants of Ukraine” was established in Ukraine to protect the rights and interests of the representatives of this profession. The main tasks of this organization are the creation of an independent platform for initiating legislative changes that improve the legal status of judicial assistants, increase their professional level, communicate with representatives of other legal professions, modernize approaches at work to the level with European standards of foreign colleagues, as well as highlight complex issues in the media.

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?

Yes, judges in Ukraine need more different assistance from the court stuff, including more qualitative work on planning and ensuring proper working conditions, as well as providing technical means for recording court proceedings. In addition, the establishment of joint working groups of court assistants working in different courts and with different specialisations under The State Judicial Administration of Ukraine or The public association “The Association of Judicial Assistants of Ukraine” would contribute to better work of judges.

31.      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 most important problems is the change in the legal status of a judicial assistant in Ukraine.

Due to the adoption in 2015 of the new Law of Ukraine “On The Civil Service”, judicial assistants lost their status of civil servants and have acquired the status of the political advisory office staff. Accordingly, judicial assistants do not have all the restrictions that are set for civil servants.

So the absence of the status of civil servant of the judicial assistants leads to certain risks, associated with the decision making process which the judicial assistant is actually involved in by drafting judgments.

The Council of Judges of Ukraine and The State Judicial Administration of Ukraine proposed to develop and adopt a separate Law, which governs the specific legal aspects of the civil service and political advisory office staff in the Ukrainian judicial system. However, for today, this initiative has not been supported.