What are limits of Justice Minister’s freedom to express his opinions on 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 (case no. I C 1115/16).

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”. The statement read that the jurist “expressed extraordinary ineptitude and was utterly incapable of conducting a very simple though much-publicised case”. “Judges adjudicating cases in a regional court should be highly skilled, proficient and professional”, went on the statement, suggesting that judge Koska-Janusz has none of these qualities. The judge brought an action for the protection of personal interests and seeks an apology and a charitable payment.

In the assessment of the HFHR, this case, which involves the limits of legally acceptable criticism of judges expressed by an executive body, has major significance for the upholding of respect for 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 analysed the legality of the relevant actions of the Minister of Justice as well as the limits of his freedom of expression in the light of constitutional and international standards of judiciary’s and judges’ independence”, says Adam Ploszka, a lawyer working for the HFHR.

“In our opinion, while publishing such comments at 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 member of the HFHR legal team Marcin Szwed.

The first hearing in the case was interrupted by the Minister of Justice’s counsel who submitted a motion to recuse all 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.