On Tuesday, the head of Poland's Supreme Court nominated 33 candidates to sit on the new Professional Liability Chamber that will replace the unlawful Disciplinary Chamber. The candidate-selection process drew much criticism and mockery.
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Yesterday's candidate-selection procedure was only the first step in a two-stage process of staffing the new Supreme Court chamber created by President Andrzej Duda. The Professional Liability Chamber (PLC), which is supposed to replace the unlawful Disciplinary Chamber, has been in operation since July. Just like the chamber it has replaced, it will be tasked with adjudicating on disciplinary cases of lawyers, and decide whether to waive the immunity of judges and prosecutors. 

Ultimately, the new chamber is to be staffed with 11 judges chosen by the president for a five-year term, as Duda specified in a law of his own making. He will choose them from a group of 33 people selected from among all the Supreme Court judges in a lottery. Their names were announced on Tuesday.

Press was denied access to the Supreme Court’s main hall

The candidate selection process took place at a meeting of the Supreme Court College, which includes the presidents of the Supreme Court. The meeting was live-streamed online, but its first part was barely audible. Journalists who wanted to observe the draw were not allowed into the Supreme Court hall. Instead, the press was put into a separate room with a TV. The entrance to the main hall of the Supreme Court was guarded by the police.

- We were issued accreditations to watch TV- said Wyborcza’s reporter Justyna Dobrosz-Oracz.

The Chief Justice of the Supreme Court, Małgorzata Manowska, explained denying access to journalists by saying that "the judges were already sufficiently stressed" about participating in a process dubbed the "death games" and the possibility of being selected.

The selection itself resembled a game of bingo and was conducted by Chief Justice Manowska. First, she showed cards with the names of all the judges to the camera and enclosed them in small, blue, ball-shaped containers. She dropped the balls into a transparent box. – Just like kinder surprise eggs- she said. - Seven spins one way, seven spins back- she described the process of mixing the balls.

"What a humiliating spectacle for the institution of the Supreme Court" - Michał Wawrykiewicz of the Free Courts Initiative commented.

New chamber, same old concerns

A total of 82 judges and so-called neo-judges (people nominated by the politicized National Council of the Judiciary, whose legality is contested by the European Court of Human Rights and the EU Court of Justice) took part in the lottery. The European Court of Human Rights has ruled that the neo-judges do not guarantee a fair trial, but the presidential bill allowed them to participate in the selection process, so Andrzej Duda can designate such people to sit on the new chamber.

This is one of the reasons why seven members of the Supreme Court College - the so-called "old judges" - protested against the draw. As Piotr Prusinowski, the head of the Labor Chamber said at the meeting, the PLC will not guarantee the right to a fair trial - because of the neo-judges, as well as the way it is staffed.

- The executive branch, in the person of the Chief Justice, is left with the discretionary power to deciding on the composition of the disciplinary court according to unspecified criteria- we read the statements issued by the seven defiant members of the College.

The president of the Labor Chamber warned that if the Chief Justice held the draw, it would result in further rulings by the Strasbourg Court confirming violations of the right to a fair trial, and the need to pay further damages. But this did not stop justice Manowska.

The Chief Justice drew a total of 16 Supreme Court judges and 17 neo-judges. The latter included people from the closed Disciplinary Chamber, including its former chairman Tomasz Przesławski.

Will the Professional Liability Chamber be an independent court? 

The European Parliament called on the European Commission in June to make sure that the new chamber will be an independent court in accordance with EU requirements (in July 2021, the Court of Justice of the European Union ruled that the Disciplinary Chamber was not an independent court). This is one of the "milestones" that Poland must meet to receive money from the National Recovery Plan. President Duda wanted to unlock the funds with his bill creating the Professional Liability Chamber.

Will the PLC be an independent court in accordance with EU requirements? - The PLC could still have neo-judges appointed with the participation of the politicized National Council of the Judiciary, which would violate constitutional and statutory standards and EU law, attorney Michał Wawrykiewicz of the Free Courts Initiative told "Wyborcza".

"We will see whom the president will choose. Perhaps he will choose only those judges whose status is non-disputed. Let us dream" - opposition senator Krzysztof Kwiatkowski wrote on Twitter.

"The composition of the chamber can be selected in terms of certain expectations regarding its jurisprudence" - lawyers of the Helsinki Foundation for Human Rights assessed the presidential bill. And it is the PLC that is supposed to verify the rulings of the Disciplinary Chamber suspending unruly judges or stripping them of their immunity.

"Information on the results of the selection will be immediately forwarded to the President of the Republic of Poland, who will appoint 11 judges to sit on the Professional Liability Chamber for the first five-year term"- the Supreme Court announced. President Duda is expected to name the final nominees in the coming days.

"A Supreme Court judge may not refuse to participate in the selection process, to be appointed to adjudicate in the PLC, or to adjudicate in that chamber once appointed by the president" – the Supreme Court emphasizes. The prospect of being chosen to sit on the PLC is also frowned upon by some of the neo-judges. Civil Chamber neo-judge Kamil Zaradkiewicz wrote on Facebook that he would consider his appointment to the PLC without his consent a violation of the Constitution. On Tuesday, he was drawn as one of the candidates for the chamber. 

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