What Are the Limits of the Polish Justice Minister’s Freedom to Criticize Judges?

This is the very question the Regional Court in Warsaw needs to answer in deciding a personal interests protection action brought by district court judge Justyna Koska-Janusz against the minister of justice.
The case concerns an official communique posted on the Justice Ministry’s website in October 2016, entitled "The statement on the shortening of the external assignment of judge Justyna Koska-Janusz."

'Extraordinary ineptitude'

The statement read that the jurist "expressed extraordinary ineptitude and was utterly incapable of conducting a very simple though much-publicized case."

The statement went on to say that "Judges adjudicating cases in a regional court should be highly skilled, proficient and professional," suggesting that judge Koska-Janusz has none of these qualities.

Koska-Janusz has brought legal action in order to defend her reputation, and she is seeking an apology and a charitable payment.

Political pressure

In the assessment of the Helsinki Foundation for Human Rights (HFHR), this case, which involves the limits of legally acceptable criticism of judges expressed by an executive body, has major significance for the upholding the constitutional principle of judicial independence.

Statements of governmental officials, especially those connected with the application of executive measures (such as a revocation of an external assignment of a judge), may constitute a form of exerting politically motivated pressure on judges.

The HFHR decided to present an amicus curiae brief in the case.

"The foundation analyzed the legality of the relevant actions of the minister of justice as well as the limits of his freedom of expression in light of constitutional and international standards of the judiciary’s and judges’ independence," says Adam Ploszka, a lawyer working for the HFHR.
"In our opinion, while publishing such comments on its website, the Ministry of Justice does not exercise freedom of speech. This freedom, as any other human right and freedom guaranteed by the Constitution or international law, is exercisable only by private entities. Operations of public authorities are assessed from the perspective of the principle of legalism, according to which the only allowed actions are those expressly approved by law," explains Marcin Szwed, another member of the HFHR legal team.

The first hearing in the case was interrupted by the Minister of Justice’s counsel, who submitted a motion to recuse all (over 280) judges of the Regional Court in Warsaw. At the same time, the counsel followed the court’s suggestion and declared that his client is ready to negotiate a settlement of the case.