Conference Agenda

In Switzerland, judicial assistants have a considerable influence on the jurisdiction in the cantons as well as at federal level. It has often been noted that judicial assistants are increasingly taking over duties that used to be of judges. This raises the question whether this shift in responsibilities is still compatible with the international legal framework and the Swiss constitution.

The organization of the Swiss judiciary is highly heterogenous. All 26 cantons and the federation have their own judicial systems, resulting in a wide variety in terms of court organization. Within the organizational structure of the cantonal and federal judiciary, courts have a high degree of autonomy in appointing and organizing judicial assistants, leading to multilayered differences in the role and function of judicial assistants – even within the same jurisdiction.

The aim of the research project is to elaborate the legal framework of judicial assistants on international and constitutional level from a perspective of public law procedures in Switzerland. This is followed by an analysis of the legal implementation at the public law divisions of the Federal Supreme Court and the upper cantonal administrative courts. Therefore, a comparative law approach is chosen within the Swiss jurisdiction and in relation to the international and national legal framework. To elaborate the practical implementation and especially soft factors (e.g. personal preferences in collaboration of the judges) within the work organization of the analyzed courts, a survey will be conducted. The project is an attempt to create transparency about the function of judicial assistants and their legal relationships as well as to draw conclusions for the court organization in Switzerland.

In the proposed contribution to the EGPA conference, the outlined research project (aim, research questions, delimitation, methodology and approach) will be introduced in detail, with a focus on the initial situation and fundamentals of judicial assistants and their embedding in the judiciary in Switzerland.

My name is Giel Stoepker. I work as a judicial assistant at the Central Appeals Tribunal in the Netherlands. This is a court that handles appeals in the field of social security. Additionally, I am affiliated with Utrecht University as an external PhD candidate.

My dissertation focuses on the collaboration between judicial assistants and judges in administrative law. So far, I have published three articles and submitted a fourth to an academic journal. I intend to use my presentation at the EGPA conference to present my concluding reflection/synthesis and gather feedback from the audience. I believe my topic aligns with the theme of court management and procedure and judgments.

The central question in my dissertation is: How should the role of the judicial assistant and their collaboration with the judge be structured to contribute to administrative justice in a legally sound, efficient, and effective manner? I approach this question from three perspectives: the profession, the judicial organization, and society.

In my dissertation, I present four articles on collaboration (building on, among others, Holvast's 2017 dissertation, the findings of the CCJE from 2019, and the comparative law articles/book contributions by Sanders from 2020 and 2024): judicial assistants and the contribution to legal quality, judicial assistants in appeal cases, judicial assistants and problem-solving justice, and judicial assistants and collegial/internal consultations between judges. These are the articles I have written and published so far. They are all based on empirical research (how does the judicial assistant do the job in the field? How is the collaboration with the judge? What is the influence?), particularly through interviews, observations, and case file analysis. A common theme in these articles is that judicial assistants perform tasks and collaborate with judges in various capacities, forms, and with different objectives. Key concepts in this collaboration are trust, autonomy, independence, proactivity, courage, curiosity, and ingenuity. This collaboration influences both the procedure and the outcome, sometimes leading to discomfort.

Following this empirical section, I will write a article in which I discuss how the role of the judicial assistant and their collaboration with the judge can be legally recognized and normatively grounded (in the Netherlands there is no clear legal position of judicial assistants). This is relevant for the central question: the work of judicial assistants is not without controversy. From a rule-of-law perspective, the fundamental principle is that only judges are entrusted with and responsible for adjudication. They are selected, trained, and socialized for this role. Moreover, a judge’s (legal) position is surrounded by various safeguards to ensure independence, impartiality, and integrity. If a judicial assistant is heavily involved in case resolution and may exert influence, it raises the question of whether this aligns with this fundamental legal principle.

The concluding reflection/synthesis focuses on structuring the role of the judicial assistant and their collaboration with the judge. At its core, the question is: what is the craft of the judicial assistant, how do they fit within the judicial organization, and what do they mean for society?

Security, justice and the enforcement of criminal sanctions are at the heart of the regalian activities, and in Switzerland they are essentially the responsibility of the cantons. The costs of criminal justice, including police activities, are difficult to pin down, which is why we are proposing an initial exploratory analysis covering the period 1990-2022, based on statistics on expenditure by canton and by function published by the Federal Finance Administration (FFA), in harmonized and comparable form. The following indicators have been selected for this ongoing project: expenditure per capita, and expenditure as a proportion of total public spending. As for the initial results, the comparisons highlight major differences between the cantons in terms of practices and available resources, as well as geographical location, population size and prevailing culture. Trends point to a gradual relative stabilization of spending on security, while 2011 would appear to be a pivotal year in terms of criminal justice costs, in line with the introduction of the Swiss Code of Criminal Procedure. Methodological challenges and new results would be presented.