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Immunitet formalny członka Zgromadzenia Parlamentarnego Rady Europy

Author(s): Tomasz Jaroszyński / Language(s): English,Polish Issue: 6/2024

The immunity protection of members of the Parliamentary Assembly of the Council of Europe covers material and formal aspects. As parliamentarians, they also enjoy immunity under national law. In the case of a member of the Sejm of the Republic of Poland (Sejm deputy) who is a member of the Parliamentary Assembly, doubts arose as to the period of time during which he or she is entitled to ‘European’ immunity. The question also emerged as to what impact the waiver of a MP’s parliamentary immunity might have on this immunity. The article discusses the scope and procedure for waiving the formal immunity of a member of the Parliamentary Assembly, as defined in the regulations of the Council of Europe. On this basis, a legal assessment was made and conclusions were drawn regarding the issues analysed, as well as those relating more generally to the institution of formal immunity.

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Wyrok Europejskiego Trybunału Praw Człowieka z dnia 20 czerwca 2024 r. w sprawie Z. vs. Czechy, dotyczącej pozytywnych obowiązków państwa w zakresie zapewnienia jednostce efektywnej ochrony przed niechcianymi aktami seksualnymi, skarga nr 37782/21

Author(s): Jan Dworakowski / Language(s): English,Polish Issue: 6/2024

In June 2024, the European Court of Human Rights handed down its judgement in a case which concerned a Czech former student who had allegedly been sexually harassed by a clergyman teaching at her university. The applicant claimed that she was unable to express her objection during sexual acts because of her over-dependence on the lecturer, as he was her promoter, and also because of her mental problems after the loss of her father. She claimed that she expressed her objection each time after these acts. However, the case ended already at the pre-trial stage, as the Czech authorities stated that for the clergyman’s acts to be considered a crime, the applicant would have had to express her objection during the sexual acts. The European Court of Human Rights ruled that the Czech Republic had violated Articles 3 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The judgement continues a line of case law initiated in M.C. v. Bulgaria (Application no. 39272/98).

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Wykonywanie zobowiązań wynikających dla Polski z prawa europejskiego a Konstytucja RP

Author(s): Krzysztof Wójtowicz / Language(s): Polish Issue: 2/2024

Article 9 of the Polish Constitution establishes the obligation of respect by the Republic of Poland of international law binding upon it. This provision belongs to the fundamental principles of the Polish legal system. However, it cannot be excluded that the interpretation or application of an international agreement, to which Poland is a party, will be changed by other parties or organs of an international organisation without consent of Poland. It could cause the conflict with principles or paticular provisions of the constitution. The case law of the European Court of Human Rights and the Court of Justice of the EU, leads to the conclusion that for a certain period of time, state authorities of Poland, by legislation or interpretation, attributed to provisions of the Polish constitution the meaning incompatible with their understaning at the moment of the accession of Poland to an international agreement. The protection of the supremacy of the constitution “modified” this way is equivalent to the use of an unconstitutional interpretation in order to free government from obligation to respect international law binding upon Poland.

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Europejski Trybunał Praw Człowieka jako europejski sąd konstytucyjny

Author(s): Marcin Szwed / Language(s): Polish Issue: 2/2024

The article presents arguments in favor of defining the European Court of Human Rights as a “European constitutional court,” and from that angle analyzes its approach to the rule of law crisis in Poland. Although the ECtHR does not rule based on constitution nor has the competence for abstract control of the “conventionality” of normative acts, voices in the literature have long argued that calling it a “European constitutional court” is not unfounded. There are several arguments supporting this view. The Court often indirectly or directly analyzes the “conventionality” of national legislation when addressing specific cases. Moreover, even though the ECtHR does not have the power to annul laws, its rulings frequently lead to legislative changes in European countries. The Court’s function cannot be narrowed down to resolving individual cases before it; through its jurisprudence, it develops new standards and significantly affects national legal systems. However, the ECtHR’s role as a “European constitutional court” is limited by factors such as the substantive scope of the convention itself, the principle of subsidiarity, and the related doctrine of the margin of appreciation. In recent years, a significant challenge for the ECtHR as a “European constitutional court” has been the rule of law crisis in Poland. Given the actual paralysis of the Polish Constitutional Tribunal, the ECtHR had to resolve a number of important issues, especially attacks on judicial independence. Often, violations of the Convention concerning threats to judicial independence resulted from the Polish authorities violating norms derived from the Polish Constitution and undertaking actions in bad faith, which the Court itself recognized in its rulings. In this way, it contributed not only to the protection of freedoms and rights guaranteed in the Convention but also to the defense of the Polish Constitution.

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Czy we wzajemnych relacjach Polski z Unią Europejską jest przestrzeń na demokrację partycypacyjną?

Author(s): Anna Rytel-Warzocha / Language(s): Polish Issue: 2/2024

The subject of the article is the problem of the application of participatory democracy in the mutual relations between Poland as a Member State and the European Union. The author points out that the instruments of participatory democracy are not homogeneous in nature, and that, depending on the legal and institutional context adopted, they may take various forms, ranging from apparent to real participation of citizens in the decision-making process. Whether a given mechanism is merely a façade or actually allows for co-determination depends on a number of factors, including both the specific legal arrangements concerning, inter alia, the way in which citizens’ will is enforced vis-à-vis state bodies, as well as the cultural and political contexts of a given environment. Undoubtedly, the personality traits of the decision-makers responsible for their implementation also have a significant impact on the way in which these mechanisms are used. The aim of this article is to determine whether the participatory instruments currently in place at the EU level do in fact give EU citizens a real direct influence on the shaping of EU policy, as well as to determine whether participatory democracy mechanisms at the national level (using Poland as an example) can influence the shaping of national policy towards the EU, and if so, to what extent, if at all. The author concludes that the question posed in the title should be answered in the affirmative. However, it is necessary to critically assess the nature of individual participatory mechanisms in terms of their degree of effectiveness. Both the solutions for implementing Art. 11 of the EU Treaty and the national solutions in Poland are currently inadequate. First and foremost, innovative tools of deliberative democracy should be more widely used, as participation without deliberation and without real redistribution of power can easily become an empty and frustrating process, allowing those in power to maintain the appearance of involving citizens in important decision-making processes. Innovative deliberative tools such as citizens’ panels should become a permanent feature of political practice at both national and European level.

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Wyrok Europejskiego Trybunału Praw Człowieka (wielka izba) z 11 lipca 2022 r. w sprawie Kavala przeciwko Turcji, skarga nr 28749/18 (postępowanie naruszeniowe)

Author(s): Mikołaj Wolanin / Language(s): Polish Issue: 2/2024

The author has analysed and translated the judgment of the European Court of Human Rights of 11 July 2022 in the case of Kavala v. Turkey, application no. 28749/18, made on under the infringement procedure. In this judgment, the Court pointed out a number of previously unarticulated theses on: the enforcement of its judgments, the infringement procedure, the relationship between the Committee of Ministers and the Court, as well as the role of conducting the infringement procedure itself when the Committee of Ministers considers that a State Party to the Convention is refusing to comply with its obligation to respect an issued judgment. The ruling may therefore have significance for a number of cases, including Polish ones, in which states do not comply with the execution of ECHR verdicts.

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THE ROLE OF TRADE UNIONS IN THE PROTECTION OF MIGRANT WORKERS IN THE EU

Author(s): Tuan Anh LUU / Language(s): English Issue: 1/2023

In the current context, the European Union has experienced a surge in the influx of migrant workers, largely due to its favorable geography, stability, and high income. Consequently, migrant worker integration has become a vital issue in the policies of EU member states. As membership based organizations that serve as representatives of workers, trade unions possess the responsibility and capability to address the problems faced by migrant workers. This paper aims to underscore the critical role of trade unions in enhancing the integration of migrant workers in EU countries, drawing on an analysis of the relationship between trade unions and migrant workers in the EU and a case study from Japan.

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The right to privacy in a world of modern technology

Author(s): Sylweriusz B. Królak / Language(s): English Issue: 4/2024

The nature and scale of interference with the right to privacy, which is carried out by public authorities in Poland, or by other entities with their consent, may take a systemic character. The use of modern surveillance tools and changes in legislation lead to the intensification of such practices. Such actions are contrary to the legal acquis and values, on which the European system of protection of human rights and the European Union are based. Against the background of legislative activities conducted in Poland and the European Union, the author has attempted to outline the threats to the right to privacy that arise in connection with the use of new technologies, whereby the described phenomena are presented from a vertical and horizontal perspective. Within the framework of the work, the result of which is described in the publication, a study of the relevant provisions of Polish law (in force and projected) and the instruments of the EU and the Council of Europe was carried out. For this purpose, the legal-dogmatic method and qualitative comparative studies were used. In addition, the legal-empirical research technique was used, including indirect observation and analysis of source documents.

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Access to data for academic purposes under the Digital Services Act

Author(s): Jarosław Greser / Language(s): English Issue: 4/2024

The growth of the digital economy has resulted in unprecedented increase of the amount of datagenerated by mankind. This vast volume and variety of data is a significant source of knowledge thatallows researchers to open new research fields and to analyse existing problems more precisely. It isparticularly important for scientists employing machine learning techniques in their studies. Froma legal standpoint, however, the data typically belongs to the entity that collected it. In practice,there can be entities such as the owners of social networks (e.g. Instagram – Meta), online services(e.g. YouTube – Google), or Internet of Things devices like fitness bands. This data is protected by pri-vate law, thus, the rules on re-use of public data cannot be applied to it. Therefore, access dependson the will of the data holder. This fact has several adverse effects on the development of scienceand society. Attempts have been made at the European Union level to create legal instruments thatfacilitate access to privately owned data for academic purposes. One such instrument is the DigitalServices Act. This article presents the analysis of the regulation in terms of balancing the interestsof scientists and data holders, as well as the practical problems that may arise from its application.

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Inchoate Crimes in the European Union: The Problem of Harmonisation

Author(s): Ugnė Urbšytė-Urbonavičienė / Language(s): English Issue: 2(30)/2024

Although while harmonising European Union and national law the changes are usually made by adjusting the articles of the Special part of the criminal code, they also affect the quality of the General part of national criminal codes, including understanding the concept of crime stages. In recent decades, the increasing number of inchoate offenses in the special parts of EU member states’ criminal codes has affected the overall integrity of national criminal law systems. Notably, while some European Union countries establish criminal responsibility not only for attempt, but also for the preparation to commit a criminal act in their general parts of criminal codes, the practice shows that when implementing European Union legislation, they tend to criminalise these preliminary actions as independent offences. In response to these tendencies, this research aims to determine, mainly using the methods of systematic, linguistic, and scientific literature analysis, whether European Union criminal law provides a clear and unambiguous requirement for Member States to criminalise inchoate actions as an independent criminal offence. The study demonstrates that the distinction between the stages of a crime is of great importance in criminal law, as it reflects the formation of a person's intention, the degree of dangerous behaviour and the corresponding relationship with the harm. Ultimately, the article also concludes that the regulation of EU law does not reveal an unequivocal conclusion as to whether actions that are essentially an unfinished criminal act must be criminalized as an independent crime, therefore further clarification is necessary.

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THE LEGAL LANGUAGE APPLIED TO ROMANIAN EDUCATIONAL INSTITUTIONS. THEORETICAL FOUNDATIONS

Author(s): Costache Corina / Language(s): English Issue: 1/2025

The legal language significantly influences educational institutions through its impact on the clarity and applicability of educational policies. Ambiguous formulations can generate misinterpretations and legal nonconformities. This article underlines the important part played by clarity and accessibility in the case of legal language in order to effectively implement rules, thus facilitating an equitable and well-structured educational environment. At the same time, the present paper emphasises the need for a teaching staff capable of mastering legal terminology in order to promote transparency and trust in educational institutions. The challenges related to the interpretation of this language and to its impact on communication in an educational context have generated extensive debates and various opinions in the educational sciences literature. The article concludes with suggestions meant to improve the training of teachers in the legal field

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THE NORMATIVE SIGNIFICANCE OF THE PRECAUTIONARY PRINCIPLE IN ARTIFICIAL INTELLIGENCE PROBLEM

Author(s): Alexandru Dragoş Maior / Language(s): English Issue: 1/2025

Against the backdrop of the implementation process of the AI Act starting in February 2025 , and in light of the opposition from major industry companies to adopting Codes of Good Practice in this area, following an AI Summit with its “epicenter” in Paris, it seems that the narrative underlying the European model for AI regulation is set to evolve with new perspectives. Starting from the absolutization of risks to highlighting positive aspects, in the face of a possible paradigm shift, we find it useful to draw attention to what logic defines as „argumentum ad temperantiam”. At first glance, moderation appears to be a correct approach in relation to the ambivalent nature of new technologies. However, the validity of reasoning cannot depend on certain predefined extremes, as this would lead to a scenario where the reasoning itself would be contingent on the subjective way in which these “extremes” are defined. The appeal to moderation, as a logical fallacy, assumes that truth lies in an intermediate position between two extremes. And while we have consistently advocated for normative balance, we cannot consider such a compromise to be valid—at least not automatically, and not without a thorough evaluation of the factual basis behind each “extreme.” Admitting that a compromise is not always the correct solution and that truth does not depend on balance, but on evidence, we find the essence of the precautionary principle to be an appropriate approach to the issue, at least as a first level of syllogism. This is because, as we will highlight at the conclusion of this paper, the technical evolution of artificial intelligence, by increasing the degree of uncertainty, will ultimately lead to the de facto inapplicability of the precautionary principle.

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A DUAL ACCOUNT OF THE INTERFACE OF TRADEMARKS AND GOODS IN TRANSIT IN THE EU LAW

Author(s): Osman Bugra Beydogan / Language(s): English Issue: 1/2025

Intellectual property (IP) protection and cross-border trade are liable to clash on many fronts; without a doubt international freedom of transit is a contentious one of them. Whilst the combat against trading in counterfeit and pirated goods has increasingly been a centerpiece of global IP agenda, substantive IP laws and administrative measures employed in that battle are often liable to erect barriers to legitimate trade. With the express acknowledgement of delicate position of the European Union -which undertakes to contribute into the world trade- in this intricate interplay, this article analyses the doctrinal assets of the Court of Justice of the European Union on the exercise of IP rights and border measures against the goods in transit. It shall firstly illustrate the reception of the same issue in the particulars of the intra-Union trade (internal transit) whereby the law tailored to the Internal Market, i.e. free movement provisions, applies. Secondly, it shall focus on the treatment of goods originating from outside the Union and are leaving or entering the Union under external transit procedures whereby we tend to observe a sequential pattern of subjugation - liberation – post-liberation. Having scrutinized the gradual development and the (quite cyclical) paradigm shifts in the latter respect, the article reflects on the Union`s compliance with its international obligations on the freedom of transit which seems to have become an increasing concern in the sequel of the amendments introduced by the EU trade mark Directive [2015/2436 (EUTMD)] and the EU trade mark Regulation [2015/2424 (EUTMR)]. Finally, it proposes a cautious interpretative approach in consideration of the said international obligations and for the maintenance of transit-friendly status-quo that has been progressively attained by the jurisprudence of the Court of Justice of the European Union.

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THE ROLE OF DRONES AND MOBILE APPLICATIONS IN FORESTRY AND AGRICULTURAL ADMINISTRATION IN HUNGARY NOWADAYS

Author(s): Balázs Szabó / Language(s): English Issue: 1/2025

The development of forestry and agriculture is one of the most important social interests, which is one of the sectoral areas of great interest, as it provides a livelihood for nearly 1 million citizens. In the life of a modern state, it is essential that the service provider is as efficient and of the highest quality as possible. This is equally true for the situation of agriculture and forestry, where the development of the environment and the production of healthy food can take bigger place. That is why the Hungarian government have to do everything in order to provide the most modern tools possible for the relevant administrative institutions in any circumstances.

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CLAUZELE ABUZIVE PRIVIND DOBÂNDA VARIABILĂ ÎN CAZUL PUBLICĂRII INDICELUI DE REFERINȚĂ PRINTR‑UN ACT ADMINISTRATIV

Author(s): Juanita Goicovici / Language(s): Romanian Issue: 4/2024

The article addresses the invalidation of the unfair terms regarding the variable interest rates from credit agreements, in the hypotheses of the publication of the reference index by an administrative act, while valorizing the transparency requirements in the pre-contractual relationships that are incumbent on the professional creditor. Emphasizing the arguments contoured in the recitals of the CJEU decision of December 12th, 2024 in case C-300/23, Kutxabank, we concluded that the failure to communicate to the debtor the information relating to the adjustment of the interest rate by reference to a negative margin opens the door to the elimination of unfair terms, despite the fact that the term at issue refers to an official benchmark, the details of which were published in an administrative act.

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OBJECTIVE JUSTIFICATIONS IN ARTICLE 102 TFEU CASES

Author(s): Laura Lazăr,Ioan Lazăr / Language(s): English Issue: 4/2024

Objective justifications in EU competition law refer to legal defences invoked by undertakings to justify behaviour that would otherwise be considered anticompetitive under EU competition rules. In the context of the provisions of art. 102 TFEU, these justifications provide exceptions to the general prohibition of abuse of dominance, permitting companies to engage in activities deemed necessary to achieve legitimate business objectives or serve the public interest. Objective justifications are pivotal in ensuring fair competition within the European Single Market, particularly under Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU). While Article 101 TFEU contains an exemption clause, the concept of objective justification in the context of Article 102 TFEU has been developed by the Courts.The entry explores the significance, application, and limitations of objective justifications within the framework of Article 102 TFEU, focusing on key defences, such as: efficiency gains, objective necessity, public interest, legitimate business behaviour.The assessment of objective justifications involves a case-by-case analysis, considering factors such as the conduct's effects on competition, consumer welfare and the fulfilment of a proportionality test. Objective justifications play a crucial role in balancing the enforcement of Article 102 TFEU with the need to allow dominant firms to engage in legitimate business activities. By providing a framework for defending certain conduct, objective justifications ensure that the application of EU competition law remains fair and focused on protecting competition rather than punishing dominance.

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Unele particularități de audiere a martorilor în procedurile sumare

Author(s): Irina Pavel-Guzun / Language(s): Romanian Issue: 4/2024

In the digital era, criminal procedural institutions need to integrate technology to streamline criminal proceedings. Moldova is making efforts and working in this direction. It is noted that the Parliament of the Republic of Moldova has adopted new laws to streamline procedures in criminal proceedings, including the introduction of four categories of simplified procedures. In the event of the separation of the criminal case into summary procedure, co defendant witnesses, including investigating officers, may be called to testify without affecting the presumption of innocence principle. Additionally, witness or expert depositions can be obtained through remote audiovisual means, with their consent, if they are unable or unwilling to appear in person at the trial.

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Tactica efectuării testului poligraf în fața instanței de judecată în cazul infracțiunilor contra libertății și integrității sexuale

Author(s): Vasile Vidrighin,George-Cătălin Grosu / Language(s): Romanian Issue: 4/2024

This paper proposes an analysis of the use of the polygraph in the criminal procedures in the trial phase, specifically in the cases of crimes against sexual freedom and integrity. Known as the lie detector test, the polygraph serves as an investigative tool in assessing the accuracy of the statements of the suspect/defendant, but it does not have an absolute probative value, as it is necessary to corroborate the test results with other evidence. The study aims to analyze the steps to be followed, as well as the practical purpose of the results, with an emphasis on the importance of the moment when the testing takes place and on the actual way in which the questions should be asked to the people subjected to the test, so that the court has at hand a suitable tool to help her establish the judicial truth.

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Metode criminalistice eficiente în cercetarea infracțiunilor de corupție

Author(s): Carmen Lorena Vlăduț / Language(s): Romanian Issue: 4/2024

Investigations into corruption offenses require the use of appropriate forensic methods, as proving these facts is extremely difficult. These methods include financial analysis, surveillance and monitoring techniques, document analysis, collaboration with technical experts and involvement of informants. By analyzing suspicious financial transactions and monitoring communications, authorities can uncover unusual patterns and behaviors that are significant for illegal activity. Complementing these steps, the thorough analysis of documents and cooperation with specialists in various fields complete the panorama of the investigation, providing an exhaustive and precise picture of the facts. The involvement of key informants and witnesses strengthens investigative efforts by providing access to vital information and details about crimes and the individuals involved.The effective implementation of these forensic methods in combating corruption offenses is crucial for maintaining the integrity of institutions and for countering the spread of corruption, both nationally and internationally.

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Reglementarea Inteligenţei Artificiale în Uniunea Europeană – respectarea drepturilor omului

Author(s): Sorin BEJAN / Language(s): Romanian Issue: 12-13/2024

This article examines the regulation of artificial intelligence (AI) in the European Union, with a focus on respect for human rights. In the context of the rapid advancement of AI technologies, it is essential to ensure that their development and implementation respect the fundamental principles of human dignity, equality and justice. The study examines the existing legislative framework, including proposals for regulating AI, and assesses their impact on individual rights, such as the right to privacy, non-discrimination and access to justice. It also discusses the ethical and social challenges raised by the use of AI, as well as the need for collaboration between European institutions, Member States and civil society to promote a responsible and transparent approach. The conclusions underline the importance of proactive regulation that protects human rights in the digital age, thus ensuring a fair and sustainable future for all European citizens. Creating a positive image of artificial intelligence (AI) is essential, given that although the technology is often criticised, it brings many significant benefits. Thus, AI can help address global challenges such as climate change by optimizing resource consumption, developing sustainable solutions, and modeling data to predict trends. In addition, technologies based on this type of intelligence, such as virtual assistants and personalized recommendations, improve the user experience in various applications, from ecommerce to streaming platforms. AI can also help create solutions that support people with disabilities, such as voice recognition technologies or automatic translation applications, thus facilitating access to information and services.

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