Legal Aspects of Bioethics Committees Functioning in the Context of Freedom to Experiment on Human Beings

The purpose of the article is to examine the legal status of bioethics committees as well as opinions produced thereby. The author’s analysis is based on provisions of international statutory material (beginning from the Nuremberg Code to Regulation (EU) No 536/2014 of the Parliament and of the Council of 15 April 2014 on clinical trials of medicinal products for human use, and repealing Directive 2001/20/EC) and domestic legal acts in the view of divergent case law of administrative courts (inter alia the Supreme Administrative Court) on that issue. The article contains several recommendations which should be taken into consideration during the implementation process of the abovementioned regulation into the Polish legal system.

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Jakubik.pdf

440 kB

Legal Framework of the Abortion Debate in the Light of the Strasbourg Case Law

The paper deals with the Strasbourg case law on various aspects of the abortion debate. The article discusses eight cases heard by the European Commission on Human Rights and the European Court of Human Rights. Five of them refer to reglamentation of anti-abortion speech, while the other three cases refer to infringement of freedom of expression in the context of a pro-choice campaign. Based on the decisions of the ECHR and judgments of the ECtHR it is impossible to reconstruct a clear framework for the conduct of public discourse on abortion. Strasbourg case law on the subject is incoherent and inconsistent. The European Court of Human Rights applies the doctrine of margin of appreciation in a selective and largely unpredictable way. Verification of the proportionality requirement – within the meaning of Art. 10 § 2 of the European Convention on Human Rights – in cases involving restrictions on freedom of expression is permeated by wide judicial discretion. One gets the impression that the ECHR with varying degrees of rigor and accuracy, or even using a double standard, decides cases of pro- and anti-abortion speech reglamentation. The paradigm according to which freedom of speech includes speech that „offends, shocks or disturbs” does not appear to be applicable to the activity of the pro-life community, a tendency evidenced by questionable judgments in Van Den Dungen and Hoffer und Annen cases.

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Maron.pdf

449 kB

Legal Capacity of Personal Commercial Companies: the Example of a Partnership

The legal regulations determining the scope of the legal capacity of personal commercial companies, including a partnership, raise the question whether these subjects are allowed to act in the market in a legally limited way as defective legal persons and if there exist juridical grounds for assuming a limited scope of the legal capacity of personal commercial companies in view of the construction of their legal personality. The analysis of the above question leads to the conclusion that a partnership, like other personal commercial companies – by virtue of Art. 8 § 1 of the Code of Commercial Companies – is generally competent to be the subject of the rights and obligations stemming from civil law relations. The limitations to the scope of the legal capacity of a partnership result from the mere specifics (substance) of a structure of that type, and they may also result from relevant legal regulations. Partnership does not imply the so-called special legal capacity defined either by the scope of tasks performed by the partnership or by the aim the partnership was created to achieve.

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Kozlowska_Chyla.pdf

315 kB

Freedom of Association and its Practical Application in the Slovak Republic

Freedom of association consists of a right to form associations and unions as well as a right to associate therein. Associations represent a natural and inevitable element of a pluralistic and democratic society. Optimal legal regulation enabling their existence and effective operation contributes to the stability of democratic establishment of the state. The article aims to review legal regulations governing associations in the Slovak Republic, with the underlying premise being that freedom of association belongs to fundamental rights. To that end, the article makes references to sources of law in Slovak Republic and also to the basic means of practical realization of freedom of association: people themselves, voluntariness, personal autonomy, separation of associations from the state, registration processes, legal conditions upon which state and judicial interventions are hinged, types of associations. The author seeks to describe the legal environment in which associations in the Slovak Republic operate, against the backdrop of legislative provisions and decisions of relevant state bodies and the judicial branch of government.

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Gajdosova.pdf

491 kB

An Issue of Qualification of Family Relationship as a Personal Interest (Critical Remarks Against the Background of the Current Case Law of the Supreme Court)

In the current case law of the Supreme Court of the Republic of Poland an opinion is presented that “family relationship” is a personal interest, a violation of which justifies the claims of family members of the deceased for compensation for immaterial damage suffered. The article offers a critical analysis of the case law from the perspective of the normative concept of personality rights and the Polish tort law. It is demonstrated that family relations have not been sufficiently defined by the Supreme Court for the purpose of compensation. They are ex definitione interpersonal and should never be considered as a personal interest, yet protected by family law. The author argues that the personal scope of compensatory liability under Polish law is restricted by statutory law to a person directly affected (conclusion from Art. 415 of the Civil Code) and victimes par ricochet are entitled to claim compensation only if a specific provision so provides (conclusion from Art. 446 of the Civil Code), as an exception to the rule. It is not necessary to classify family relationship as a personal interest so long as Art. 446 of the Civil Code and the Patients’ Rights Act provide comprehensive protection and do not consider family relationship as a personal interest.

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Bosek.pdf

451 kB