Chapter II. Governmental actors’ preferences and negotiation behaviour at the European Convention. The theoretical debate and the search for a toolbox

AbstractEuropean evidence law is a quite sensitive topic and has always been the cause of much debate by practitioners and academics. Theoretical and physical borders do not matter for transnational crime. The intensive mobility of people and the evolution of world trade with goods and services create favorable conditions for the cross-border crime to develop. Therefore, it is of a great importance to take far-reaching steps to an upgraded mechanism for obtaining evidence in and from the Member States. This article examines the application of two mutual legal assistance instruments – the request for mutual assistance, which was established by the European Convention on Mutual Assistance in Criminal Matters of 1959, the EU Mutual Legal Assistance Convention of2000 with its 2001 Protocol, and Arts. 48 to 53 of the Schengen Agreement, and the European Investigation Order introduced by the Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters. The main objective of this research is to emphasize the advantages and disadvantages of both judicial cooperation mechanisms. A comparative analysis of both operational tools is an appropriate way to assess which one is related to more procedural savings and how both of them deal with the protection of human rights. Thus, the modern instruments for judicial cooperation in the area of transnational evidence-gathering as an international response to crimes with cross-border dimensions can be adequately valued.

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Prawne regulacje pobierania i transplantacji narządów oraz tkanek w ujęciu europejskiej konwencji bioetycznej

10.31338/1641-2478pe.1.16.3 ◽

2016 ◽

pp. 52-65

Author(s):

Patryk Kołodyński ◽

Paulina Drab

Keyword(s):

Ex Vivo ◽

Legal Aspects ◽

European Convention ◽

The Public ◽

Additional Protocol ◽

The Past ◽

Reliable Source ◽

International Legal Order ◽

Definition Of ◽

Source Of Information

Over the past several years, transplantology has become one of the fastest developing areas of medicine. The reason is, first and foremost, a significant improvement of the results of successful transplants. However, much controversy arouse among the public, on both medical and ethical grounds. The article presents the most important concepts and regulations relating to the collection and transplantation of organs and tissues in the context of the European Convention on Bioethics. It analyses the convention and its additional protocol. The article provides the definition of transplantation and distinguishes its types, taking into account the medical criteria for organ transplants. Moreover, authors explained the issue of organ donation ex vivo and ex mortuo. The European Convention on Human Rights and Biomedicine clearly regulates the legal aspects concerning the transplantation and related basic concepts, and therefore provides a reliable source of information about organ transplantation and tissue. This act is a part of the international legal order, which includes the established codification of bioethical standards.

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Standardy należytego uzasadnienia w świetle orzecznictwa Trybunału Konstytucyjnego i Europejskiego Trybunału Praw Człowieka

Studia Prawnicze / The Legal Studies ◽

10.37232/sp.2014.4.2 ◽

2014 ◽

pp. 33-48

Author(s):

Przemysław Florjanowicz-Błachut

Keyword(s):

European Union ◽

Human Rights ◽

Due Process ◽

Case Law ◽

Fair Trial ◽

Fundamental Rights ◽

European Convention ◽

European Court ◽

Judicial Reasoning ◽

The Right

The core function of the judiciary is the administration of justice through delivering judgments and other decisions. The crucial role for its acceptance and legitimization by not only lawyers, but also individulas (parties) and the hole society plays judicial reasoning. It should reflect on judge’s independence within the exercise of his office and show also judicial self-restraint or activism. The axiology and the standards of proper judicial reasoning are anchored both in constitutional and supranational law and case-law. Polish Constitutional Tribunal derives a duty to give reasoning from the right to a fair trial – right to be heard and bring own submissions before the court (Article 45 § 1 of the Constitution), the right to appeal against judgments and decisions made at first stage (Article 78), the rule of two stages of the court proceedings (Article 176) and rule of law clause (Article 2), that comprises inter alia right to due process of law and the rule of legitimate expactation / the protection of trust (Vertrauensschutz). European Court of Human Rights derives this duty to give reasons from the guarantees of the right to a fair trial enshrined in Article 6 § 1 of European Convention of Human Rights. In its case-law the ECtHR, taking into account the margin of appreciation concept, formulated a number of positive and negative requirements, that should be met in case of proper reasoning. The obligation for courts to give sufficient reasons for their decisions is also anchored in European Union law. European Court of Justice derives this duty from the right to fair trial enshrined in Articles 6 and 13 of the ECHR and Article 47 of the Charter of Fundamental Rights of the European Union. Standards of the courts reasoning developed by Polish constitutional court an the European courts (ECJ and ECtHR) are in fact convergent and coherent. National judges should take them into consideration in every case, to legitimize its outcome and enhance justice delivery.

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