The censored judgment was issued by Judge Olimpia Barańska-Małuszek of the District Court in Gorzów Wielkopolski. It resounded throughout Poland. This was the first time a Polish judge had applied a landmark judgment of the European Court of Human Rights in Strasbourg, which assessed the changes introduced into the Constitutional Tribunal introduced by PiS (Law and Justice party) and held that the Constitutional Tribunal’s benches with stand-in judges are defective.

The judgment of the judge from Gorzów was published on the governmental Portal of Judgments of the Ordinary Courts. It is administered by the Ministry of Justice.

The judgment was removed from the database several days ago because the judge wrote ‘stand-in Mariusz Muszyński’ from the Constitutional Tribunal in the justification of the judgment.

The decision to remove the judgment was made by the president of the District Court in Gorzów Wielkopolski, Anna Kuśnierz-Milczarek, who had been appointed by Minister Ziobro’s ministry. This court is subordinated to the District Court in Gorzów, the president of which is Jarosław Dudzicz, who is simultaneously a member of the new NCJ and a supporter of a harsh course in the courts.

Will the prosecutor’s office strike at the brave judge

The matter has caused quite a row in the court. The secretarial worker who published the judgment had to explain herself extensively. OKO.press established that the judgment will be returned to the database after Muszyński’s identity is concealed under the abbreviation M.M.

This is not all. The precedent-setting judgment disregarding the role of Julia Przyłębska’s Constitutional Tribunal in examining the constitutionality of legislation has attracted the interest of the Regional Prosecutor’s Office in Szczecin.

And specifically, its head, Artur Maludy, who has ordered a copy of the judgement together with the justification. He may wish to contest it, or he may be considering opening a criminal case against the judge for overstepping her rights.

‘This is a scare tactic, an attempt to put pressure on the judge,’ a person who is familiar with workings of the Gorzów court tells us. However, this matter may be used as a pretext to strike at Judge Olimpia Barańska-Małuszek, who is involved in the defence of the free courts and is the head of the Gorzów branch of the independent association of judges, Iustitia. She has already been disciplined for criticizing Minister Ziobro’s ‘reforms’. Attempts were also made to prosecute her for meetings with citizens at Jerzy Owsiak’s festival [a hugely popular charity event in Poland – eds.] and for allegedly writing justifications of judgments late. Barańska-Małuszek was one of the first independent judges in Poland to be prosecuted by Minister Ziobro’s disciplinary commissioners.

How the judge ignored the judgments of the Constitutional Tribunal involving the stand-in Muszyński

The judgment, which was removed from the Portal of Judgments of the Ordinary Courts, was issued by Judge Olimpia Barańska-Małuszek on 24 May 2021. The case applies to compensation for hunting damage. A farmer sued a hunting club for the destruction of a crop of carrots by game.

He lost the case, but the judgment is valid and precedent-setting. This is because, in this case, Judge Barańska-Małuszek herself assessed the constitutionality of the hunting law, ignoring the two judgments of Julia Przyłębska’s Constitutional Tribunal. She did this because the Constitutional Tribunal’s bench included stand-in Judge Mariusz Muszyński (vice-president of the Constitutional Tribunal), as she wrote in the justification of her judgment.

In this way, she was probably the first in Poland to cite a judgment of the European Court of Human Rights in Strasbourg, from which it arises that a Constitutional Tribunal bench with a stand-in judge is defective.

Muszyński is a stand-in judge because PiS elected him in the Sejm to a position in the Tribunal that had been previously correctly filled. The ECtHR judgment was passed on 7 May 2021 and is a landmark because this is the first time an international tribunal has assessed PiS’s assumption of control over the Constitutional Tribunal.

Judge Barańska-Małuszek’s judgment was posted on the Judgments Portal on 11 June 2021. It was posted by the court secretary at her request, and the judge only checked that everything was in order and then went on a brief holiday. Journalists took an interest in the judgment that was posted a week ago. The arguments arising from it about the right of the ordinary courts to independently examine the constitutionality of laws – bypassing Julia Przyłębska’s Constitutional Tribunal with the stand-in judges – were written up by ‘Gazeta Wyborcza’ and then by OKO.press:

The judgment was also read by lawyers, who forwarded a link to its justification on the judgements portal to each other.

Why is Muszyński’s full name of concern?

The link to the judgment suddenly stopped working on Friday afternoon, 18 June. It transpired that it was no longer in the database of judgments. It was not there over the weekend either. To rule out a failure of the Judgments Portal, OKO.press sent questions about the case on Monday 21 June to the Regional Court in Gorzów Wielkopolski, to which the district court is subordinated.

That court’s press officer, Lidia Wieliczuk, replied. She admitted that the precedent-setting judgment had been removed from the portal as a result of an order issued by the president of the District Court in Gorzów Wielkopolski, Anna Kuśnierz-Milczarek. ‘The ruling was removed from the portal pending its proper anonymization as it contains data it should not contain, which can result in the court’s liability for damages,’ explains the court’s press officer to us.

We therefore asked the court what the reason was for deleting the judgment and whether it would return to the database after this data is removed or anonymized. We received a response on Tuesday 22 June. The press officer replied that ‘according to the statement of the President of the 1st Civil Division of the District Court in Gorzów Wlkp. the problem I wrote about in the previous e-mail [the inclusion of personal data in the ruling – ed.] applied to the forename and surname of a judge of the Constitutional Tribunal’. Namely Mariusz Muszyński.

The press officer makes the assurance in her response to OKO.press that ‘the ruling and its justification will immediately reappear on the website of the District Court in Gorzów Wlkp. after the anonymization procedure is exhausted.’ This could happen on Wednesday 23 June. The judgment will therefore return to the database of judgments after Mariusz Muszyński’s full personal details are removed and replaced with the initials M.M.

Will the description of Muszyński as a stand-in also be deleted from the justification of the judgment? ‘There were no such instructions,’ we hear in the Gorzów court. However, the judgment with the words ‘stand-in Mariusz Muszyński’ will not disappear from the web. It is still available on the website Konstytucyjny.pl.

President of Iustitia: The removal of a judgment because of Muszyński’s name is a form of censorship

Krystian Markiewicz, the head of the largest association of independent judges, Iustitia, believes the name of Mariusz Muszyński, vice-president of the Constitutional Tribunal, is public. This is because he is, like any judge – even a defectively appointed one – a public personality. And he should not be anonymized in court judgments. ‘The behaviour of the president of the Gorzów court is absurd. This is a form of censorship. But this no longer surprises me. Because I myself waited several days for my preliminary questions to the CJEU to be published in the database of judgements,’ Krystian Markiewicz, head of Iustitia, tells OKO.press. He emphasizes that the parties to the proceedings have the right to know why the court is justifying its ruling in such a way. And they will understand the motives of the ruling better if the full name of the stand-in judge is there rather than the initials M.M.

Or perhaps this is because the term ‘stand-in’ appeared next to Muszyński’s name in Judge Olimpia Barańska-Małuszek’s judgment? And perhaps the court became frightened of a possible reaction from the vice-president of the Constitutional Tribunal or Minister Ziobro’s people? ‘It is the judge and not the president of the court, who is responsible for issuing the judgment,’ Krystian Markiewicz emphasizes.

The head of the Iustitia also believes that the demand for a copy of the precedent-setting judgment from Gorzów by the Regional Prosecutor’s Office in Szczecin is yet another example of the recent increased activity of the prosecutor’s office and Minister Ziobro’s disciplinary commissioners. As we wrote, they are demanding the files of the precedent-setting cases regarding Igor Tuleya, Beata Morawiec and Paweł Juszczszyn:

‘They are interested in cases in which the status of the Disciplinary Chamber is undermined or in which they write about stand-ins at the Constitutional Tribunal. This is supposed to scare other judges off from passing similar judgments. Maybe they are doing it for show, to prove themselves. But the judges will not be scared, because there are increasingly more rulings like the one from Gorzów Wielkopolski,’ the head of Iustitia, Krystian Markiewicz, tells us.

Translated by Roman Wojtasz

The text was published at OKO.press on June, 22 2021.