Judge assistants must be elected in competition and governed by the law on civil service – experts

On 7 February, the CHESNO Movement, as part of the CHESNO.Filter the Judiciary! Campaign, held an expert discussion in Kyiv: “Judge Assistants: Legal Status and Place in the Judicial System”. At the event, representatives of the State Judicial Administration of Ukraine, the courts of higher instances, international experts, experts of specialized NGOs, specialists in law and the judiciary discussed the problems of the position of judge assistants in Ukraine, their official legal status, procedures for recruitment, internship, professional development, etc. The main points of discussion were the corruption risks associated with the lack of status of a state official for judge assistants, the tools for controlling the work of judge assistants and the procedure for their selection.

Senior analyst of the CHESNO.Filter the Judiciary! Campaign Ivan Piatak highlighted the key issues of the status of judge assistants. In particular, those are the absence of competitive procedures, preliminary internship, examinations when selecting judge assistants; the absence of the status of a civil servant, and hence, the lack of control and non-application to them of provisions of the Law of Ukraine “On Prevention of Corruption”. During the expert discussion, Ivan Piatak noted that such situation with the status of a judge assistant in Ukraine raises corruption risks, as the judge assistants possess important information and are essentially connected to decision making by judges.

During the discussion, the experts noted the important role of judge assistants in the judiciary, as these people are engaged in selection of applicable law and essentially, prepare draft decisions, which are further adopted by the judge. Thus, the judge assistants are doing an extremely important and difficult job that requires extraordinary professionalism. However, innovations regarding the status of judge assistants introduced during the reform, can negatively affect the current state of affairs. During the event, experts emphasized that the judge assistants used to be qualified as civil servants, and therefore, were elected to the post as a result of the relevant competition; they also bore the responsibility, regularly reported on their activity and were required to undergo a qualification upgrade procedure.

During his speech, senior analyst of the CHESNO.Filter the Judiciary! Campaign Ivan Piatak gave an example of the Poland’s experience, drawing experts’ attention to the fact that in the neighbouring country, candidates to judge assistants go through a competitive selection process, and further undergo mandatory training and internship during the year.

The Pro-Chancellor for Personnel Training for the judiciary at the National School of Judges of Ukraine, Anatolii Kostenko, noted that to be admitted as a judge assistant, there are no mandatory studies and only the judge submits the candidates for the position of judge assistants. However, he noted that after the appointment of a judge assistant for this position, there are various opportunities for further training at the National School of Judges.

Tetiana Opanasiuk, deputy head of the legal department, head of the legal expertise department of the State Judicial Administration of Ukraine, proposed to introduce a pool system for judge assistants. Opanasiuk ended up with an example, “This is when a judge comes to work in a court, he or she can choose an assistant from the pool, a person who was selected as a result of the competition but has not yet become a judge assistant”. Tetiana Opanasiuk also noted that the State Judicial Administration defended the status of a civil servant for judge assistants in 2015, when the relevant legislative changes were adopted. Ms. Tetiana explained this by giving example of her own experience as a judge assistant and head of the court’s administration, noting that the assistants who were also the civil servants bore certain responsibility and had a few limitations which the judge assistants who are now being assigned to the support service do not have at the moment. However, Tetiana Opanasiuk noted that the draft Regulation on judge assistants developed by the State Judicial Administration contains the new provision on accountability of judge assistant to the court and not only to judges, as part of the labour discipline procedure.

Olha Prymak-Berezovska, the Chairman of the Association of Assistant Judges of Ukraine, supported the idea of ​​a competitive selection of judge assistants and also, to restore their status as civil servants. She noted that legally the assistant to the judge who denied the status of a civil official, has no responsibility in the trial, and therefore, has no right to conduct procedural actions, although each judge assistant in practice performs such actions. She also agreed with the idea of ​​creating a pool for judge assistants, the appointment of judge assistants through competitive selection and psychological testing.

Discussing the status and place of judge assistants, the lawyer of theTransparency International Ukraine Maksym Kostetskyi listed possible corruption risks that arise when judge assistants do not have the status of civil servants. “For example, judge assistants may receive gifts, may become members of political parties, may work in law firms that can be directly related to certain lawsuits,” said Kostetskyi.

Member of the High Qualifications Commission of Judges of Ukraine and retired judge Stanislav Shchotka shared his own experience of selection and work with judge assistants. During his career as a judge, Mr. Shchotka was guided by the criteria of professionalism and level of knowledge when selecting the assistants. He conducted individual tests for candidates and the high level of theoretical knowledge of the candidates, their professional ambitions, substantial application of knowledge and experience, were the main grounds for his final decision as to the candidates.

In his turn, the head of the EU project “Support to Justice Sector Reforms in Ukraine” Dovydas Vitkauskas shared the European experience regarding the judge assistants. He formally divides these activities into two types – the “Luxembourg” type of assistants where the judge assistants directly depend on the judges, and the “Strasbourg” one where, in fact, judge assistants and judges are two separate independent levels within the court system, and an assistant depends on the judge only functionally. He suggested that in Ukraine, the combination of these two approaches could be the best-balanced option.

To recap, the judicial reform in Ukraine continues and public attention is focused on the issue of cleansing and upgrading the judicial system. However, speaking of the judiciary, it is necessary to focus not only on judges. Judge assistants are also very important actors, they total to almost 7 thousands all over Ukraine. In 2017, the High Qualifications Commission of Judges started the recruitment for judges, where the persons who have worked as judge assistants for at least three years, have substantial privileges, being able to get to the pool under the simplified procedure.