rss_2.0Białostockie Studia Prawnicze FeedSciendo RSS Feed for Białostockie Studia Prawniczehttps://sciendo.com/journal/BSPhttps://www.sciendo.comBiałostockie Studia Prawnicze 's Coverhttps://sciendo-parsed-data-feed.s3.eu-central-1.amazonaws.com/61d73b45671b3610c0368987/cover-image.jpg?X-Amz-Algorithm=AWS4-HMAC-SHA256&X-Amz-Date=20220125T103328Z&X-Amz-SignedHeaders=host&X-Amz-Expires=604800&X-Amz-Credential=AKIA6AP2G7AKDOZOEZ7H%2F20220125%2Feu-central-1%2Fs3%2Faws4_request&X-Amz-Signature=e8b1e1d6f6211945c02afc58326442dfe2a9b518db0972950a07f68330b96efd200300Bias in Artificial Intelligence Systemshttps://sciendo.com/article/10.15290/bsp.2021.26.03.02<abstract> <title style='display:none'>Abstract</title> <p>Artificial intelligence systems are currently deployed in many areas of human activity. Such systems are increasingly assigned tasks that involve taking decisions about people or predicting future behaviours. These decisions are commonly regarded as fairer and more objective than those taken by humans, as AI systems are thought to be resistant to such influences as emotions or subjective beliefs. In reality, using such a system does not guarantee either objectivity or fairness. This article describes the phenomenon of bias in AI systems and the role of humans in creating it. The analysis shows that AI systems, even if operating correctly from a technical standpoint, are not guaranteed to take decisions that are more objective than those of a human, but those systems can still be used to reduce social inequalities.</p> </abstract>ARTICLE2021-10-22T00:00:00.000+00:00Is the Traditional Method of Regulation (the Legislative Act) Sufficient to Regulate Artificial Intelligence, or Should It Also Be Regulated by an Algorithmic Code?https://sciendo.com/article/10.15290/bsp.2021.26.03.03<abstract> <title style='display:none'>Abstract</title> <p>The issue of the regulation of artificial intelligence (AI) is one of the significant challenges faced by the EU at present. Most researchers focus on the substantive scope of AI regulation, including state law, ethical norms and soft law. In addition to the substantive and legal scope of the regulation, it is worthwhile considering the manner of such regulation.<sup>1</sup> Since AI is an algorithmic code, it seems correct to regulate (restrict) AI not so much with traditional law established in natural (human) language as with one implemented into algorithms. They may operate as a tool supporting traditional legislation (RegTech), but it is possible to go further with the issue and create regulation algorithms which implement the law as the effective law. However, this requires a new approach to law and legislation – the law as algorithmic code.</p> </abstract>ARTICLE2021-10-22T00:00:00.000+00:00Industrial Breeding of Animals: Legal and Ethical Issueshttps://sciendo.com/article/10.15290/bsp.2021.26.03.10<abstract> <title style='display:none'>Abstract</title> <p>The main purpose of this article is to discuss the basic legal and axiological problems that are associated with technological advances in animal rearing and breeding. The implementation of this research task required, first and foremost, the definition of the concept of ‘welfare’ and the identification of basic legal provisions determining the welfare of livestock in Poland. Moreover, the article addresses the ethical aspect of the problems associated with the implementation of modern animal welfare technologies, including the role of Christianity in shaping moral attitudes in this area. The paper is also an attempt to define the level of public awareness about the need to protect animals and the perception of problems related to the intensification of livestock production. The need to address the issue stems, above all, from the fact that human life and our attitudes towards animals are changing with the development of civilization. In any event, the changes that have taken place in this area over the past decades make the problem topical and lead to a reflection on the welfare of animals kept in industrial farming conditions. It is assumed that the research carried out will contribute to the development of an optimal legal model for the protection of livestock. Even the mere dissemination of the results will raise public awareness of the humanitarian protection of animals, which is one of the preconditions for further progress in civilization.</p> </abstract>ARTICLE2021-10-22T00:00:00.000+00:00Pros and Cons of Digital Solutions for the Implementation of Freedom of Movement and Residence in the Schengen Area in the Era of the COVID-19 Pandemichttps://sciendo.com/article/10.15290/bsp.2021.26.03.08<abstract> <title style='display:none'>Abstract</title> <p>The COVID-19 pandemic caused by the SARS-CoV–2 coronavirus, which emerged in Europe in January 2020, gave rise to restrictions by European Union Member States on freedom of movement and residence in the Schengen area. Individual actions by states mobilized the EU to take formal steps as well as to implement practical solutions to coordinate the efforts of all Member States. Digital solutions belong to the practical measures. Their implementation may bring potential benefits but is also associated with the possibility of potential risks. This article presents the basic assumptions of freedom of movement and residence in the Schengen area and their limitations by Member States justified by public health reasons. The characteristics of digital solutions for facilitating freedom of movement during the COVID-19 pandemic are then presented, taking into account their effectiveness. The paper concludes with a presentation of the benefits and potential risks associated with the implementation of selected digital solutions by the European Union.</p> </abstract>ARTICLE2021-10-22T00:00:00.000+00:00Remote Trial and Remote Detention Hearing in Light of the ECHR Standard of the Rights of the Accusedhttps://sciendo.com/article/10.15290/bsp.2021.26.03.11<abstract> <title style='display:none'>Abstract</title> <p>This article concerns the compliance of the institutions of remote trials and remote detention hearings introduced to the CCP by the Polish ‘coronavirus act’ of 19 June 2020 with the ECHR standard on the rights of the accused. In the first part of the article, it is indicated that the ECtHR in its jurisprudence accepts that a trial in the form of a videoconference is not in principle contrary to the ECHR, provided, however, that there are compelling reasons to dispense with the traditional trial (main or appellate) and that the procedure of using a videoconference itself meets the requirements of a fair trial according to Article 6 ECHR and ensures the accused both effective personal participation in the trial and effective use of the services of a defence counsel, in particular the confidentiality of the lawyer’s contact with their client. The Covid-19 outbreak has changed European justice systems, and now videoconferencing in court proceedings is seen not only as an exceptional measure, but as possibly an effective part of the ordinary activity of courts. The analysis of the assumptions of remote trials in ordinary Polish criminal proceedings shows that this institution does not meet the standards of a fair trial, especially the standard of the effective participation of the defence counsel. In contrast, compared to a remote trial, a remote detention hearing in Poland has a wider scope of application and poses serious risks to the standards on deprivation of liberty (Article 5(3) and Article 3 ECHR) and effective defence (Article 6(3) ECHR). The possibility of using both forms of videoconferencing without the participation of a defence counsel and the permanent nature of the changes introduced are particularly worrying.</p> </abstract>ARTICLE2021-10-22T00:00:00.000+00:00Human Enhancement in the Context of Disability (Bioethical Considerations from the Perspective of Transhumanism)https://sciendo.com/article/10.15290/bsp.2021.26.03.05<abstract> <title style='display:none'>Abstract</title> <p>In the present paper we examine several problems associated with medical development in the field of human-enhancing technologies, particularly with respect to disability. The subject of our considerations partly focuses on the fact that progress in biotechnology and information technology in medicine has contributed to the elimination of diseases and various health disorders (including some aspects of disability). Furthermore, we centre our attention on the dilemma of increasing the efficiency and activity of those who are ‘fully functional’, by introducing, among others, the available exo-extensions (such as exo-prostheses), endo-implantation and reprogenetics (such as PDG and CRISPR methods). Finally, we point out several ethical and legal doubts surrounding the apparent intention of creating a transhumanist vision of the ‘perfect human being’ (‘post-human’, ‘bionic human’, ‘human cyborg’).</p> </abstract>ARTICLE2021-10-22T00:00:00.000+00:00The European Court of Human Rights and Internet-Related Caseshttps://sciendo.com/article/10.15290/bsp.2021.26.03.06<abstract> <title style='display:none'>Abstract</title> <p>The Internet-related cases coming to the European Court of Human Rights provide a good illustration of the challenges posed to the protection of human rights as based on the European Convention of Human Rights drafted in 1950. Considering that the Convention is a 70-year-old instrument, the Strasbourg Court has to deal with these cases using the body of principles and interpretation methods and techniques that has been developed so far, and in particular the ‘living instrument’ doctrine. In this study I propose to explore some main threads in the Court’s jurisprudence on Internet-related cases, outlining the specific nature of Internet-related cases, discussing the problem of rights connected with the Internet as well as the impact of the Internet on such classical rights as freedom of expression and the right to privacy. I conclude that the Internet-related case law of the Convention is in a process of constant development. The Strasbourg Court has demonstrated that it is capable of dealing with Internet-related cases based on general Convention norms and using its well-developed interpretation techniques. The striking feature of Strasbourg’s case law is the ECtHR’s recognition of the considerable importance of the Internet as regards the exercise of freedom of expression, and in particular freedom to seek and access information. Although the ECtHR regards the Internet as a communication medium, however, it recognises its specific features which affect the performance of rights protected by the Convention as well as dangers it poses for the protection of human rights under the European Convention of Human Rights.</p> </abstract>ARTICLE2021-10-22T00:00:00.000+00:00The Use of Covid-19 Digital Applications and Unavoidable Threats to the Protection of Health Data and Privacyhttps://sciendo.com/article/10.15290/bsp.2021.26.03.04<abstract> <title style='display:none'>Abstract</title> <p>This paper starts with a dilemma. How to ensure the adequate protection of individual health data and privacy in a global pandemic, which has intensified the use of digital applications for the purposes of data sharing and contact-tracing? There is no simple answer to this question when choosing between the protection of public health and individual privacy. However, the history of the existing case-law regarding infectious diseases control, both Polish and European, teaches about numerous examples in which health data and privacy were not adequately protected, but, on the contrary, were misused leading to human rights infringements. In light of this case law and public health ethics, this paper argues radically that the use of digital applications to fight the Covid-19 pandemic has not been sufficiently justified at least in the Polish context. Especially, unconvincing benefits from the use of these tools do not outweigh the likelihood of human rights infringements with far-reaching consequences for political, social and economic rights now and in the future. In its novelty, this article combines a historical-legal method with the concept of public health ethics and a human rights-based approach and to foster further research and discussion. The text also responds to the pressing need to analyze those human rights issues embedded in the Polish reality.</p> </abstract>ARTICLE2021-10-22T00:00:00.000+00:00Criminalizing Cybercrimes: Italian and Polish Experienceshttps://sciendo.com/article/10.15290/bsp.2021.26.03.09<abstract> <title style='display:none'>Abstract</title> <p>The rapidly advancing development of technology has both positive and negative eff ects on society and its members. Moreover, legislation can be slow to catch up with reality. This also applies to any reaction of society to new forms of social deviance. There is typically a delay in the introduction of legislation which tries to give a legal framework to new technological developments. The authors have taken an exploratory approach, analysing changes in Italian and Polish penal law relating to cybercrime that have occurred in Italy and Poland so far. The timeline, pace, and scope of the processes of criminalization are presented for each country. Even though both legislators had and have the same goal, diff erences in the approach to achieving it are visible. The conclusions may lead to changes in the penal policies of both countries.</p> </abstract>ARTICLE2021-10-22T00:00:00.000+00:00New Technologies between Law and Ethics: Some Reflectionshttps://sciendo.com/article/10.15290/bsp.2021.26.03.01<abstract> <title style='display:none'>Abstract</title> <p>This article proposes a reflection on the relationship between ethics, law and new technologies. The relevance of the debate is testified by numerous initiatives and measures, both European and international, which aim to offer answers, necessarily not definitive but evolving, to phenomena such as the development of the internet of things, the incessant extraction and use of big data and, more generally, advances in artificial intelligence and robotics. From this perspective, issues such as respect for privacy and human dignity are raised, to be balanced with the right to inform and be informed as a sign of an effectively shared knowledge. What emerges is the need for a deep critical consideration of the guarantee of individual and collective spheres of action, removed from the domination of market interests, in the affirmation of prevailing and non-negotiable rights. Equally indispensable is the critical attention given to the limits to be placed on human manipulation and alteration, and on the relationship between human being and machine. This assumes a particular ethical, legal and prescriptive meaning aimed at guaranteeing the pluralism of values and dialogue typical of every democratic society.</p> </abstract>ARTICLE2021-10-22T00:00:00.000+00:00Artificial Intelligence and Taxation: Assessment and Critical Issues of Tax-Levy Modelshttps://sciendo.com/article/10.15290/bsp.2021.26.03.07<abstract> <title style='display:none'>Abstract</title> <p>The phenomenon of artificial intelligence and robotics, which has been under investigation for several years, has given rise to new taxation models, which have opened a lively ethical and legal debate in the scientific and cultural community which has not yet subsided. This essay, analyzing the tax effects of the relationship between intelligent machines and humans in the light of the perspectives offered by the new economy and after verifying compatibility with the founding principles of the Italian legal system (first of all, the rule of ‘ability to pay’ pursuant to Article 53 of the Constitution), assesses new taxable cases and tax-levy techniques related to the applications of artificial intelligence, also in the light of the possible tax subjectivity of the robot, in an attempt to make a contribution, from a <italic>de iure condendo</italic> perspective, to the taxation dynamics concerning automated production processes.</p> </abstract>ARTICLE2021-10-22T00:00:00.000+00:00Introduction of Art. 276a of the CCP as a Result of the Impact of the SARS-CoV–2 Pandemic on the Criminal Trialhttps://sciendo.com/article/10.15290/bsp.2021.26.06.11<abstract> <title style='display:none'>Abstract</title> <p>One of the consequences of the coronavirus pandemic (SARS-CoV–2) in the context of the impact on the Polish criminal trial was the introduction to the Code of Criminal Procedure of a new preventive measure related to the protection of medical personnel, specified in the new editorial unit – Art. 276a of the CCP. This measure was introduced by the Act of March 31, 2020, amending the Act on special solutions related to the prevention, counteraction, and combating of COVID-19, other infectious diseases and the crisis situations caused by them, and some other acts, and is a novelty in the Polish criminal procedure. The purpose of this article is to investigate a new preventive measure defined in Art. 276a of the Code of Criminal Procedure in terms of the legitimacy of its introduction to the Polish Code of Criminal Procedure. Three research problems will be analysed. The first concerns the extent to which the introduction of the new preventive measure under Art. 276a of the Code of Criminal Procedure was necessary in terms of the need to provide special protection to medical personnel in Poland. The second research problem concerns the extent to which the application of the new preventive measure under Art. 276a of the Code of Criminal Procedure corresponds to the assumptions of the Polish legislator and what is the <italic>ratio legis</italic> of the analysed regulation. The third research problem boils down to the extent to which the amendment to Art. 276a of the Code of Criminal Procedure corresponds to the rules of legislative technique.</p> </abstract>ARTICLE2021-12-30T00:00:00.000+00:00The Juvenile Reentry Mentoring Project: Adaptations During COVID-19https://sciendo.com/article/10.15290/bsp.2021.26.06.08<abstract> <title style='display:none'>Abstract</title> <p>Delinquent youths often do not receive the opportunity to be mentored. This is especially true for youths who have committed serious law violations or are detained for multiple law violations. In the United States, youths with the most serious offenses are often committed to detention, or rehabilitation, or treatment centers. Since 2011, the Juvenile Reentry Mentoring Project (JRMP) has matched mentors to youths detained in Nebraska Detention, and Treatment Facilities. The Nebraska Youth Rehabilitation, and Treatment Centers (YRTCs), specifically, are for youths with the highest level of needs and who have exhausted all other programs available in the community. From 2011 through February 2020, the JRMP developed as an evidence informed model for mentoring juveniles with the highest level of need and the most serious law violations. The onset of the COVID-19 pandemic disproportionately impacted youths in detention and treatment centers, and mentoring programs such as the JRMP adapted to continue to meet existing and emerging needs of youths. The aim of this article is to report on the evidence-based development of the JRMP and the adaptations that were necessary for it to continue to operate during COVID-19. We close with recommendations and lessons learned from the pandemic and ways that programs can resist a return to the status quo.</p> </abstract>ARTICLE2021-12-30T00:00:00.000+00:00Prisoners During the Pandemichttps://sciendo.com/article/10.15290/bsp.2021.26.06.03<abstract> <title style='display:none'>Abstract</title> <p>In connection with the COVID-19 pandemic, all countries of the world are taking actions to minimize the spread of the virus. These actions interfere with civil rights and liberties. They particularly affect convicts who serve prison sentences, as such sentences deprive them many of their rights or significantly restrict them. Recognizing the situation of prisoners at this difficult time, in March 2020, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (CPT) issued the Statement of principles relating to the treatment of persons deprived of their liberty in the context of the coronavirus disease (COVID-19)<sup>1</sup>, while the Subcommittee on Prevention of Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment prepared Advice to States parties and national preventive mechanisms to the coronavirus disease (COVID-19) pandemic. The purpose of this paper is to determine whether our country, while taking certain actions, takes into account the recommendations contained in both aforementioned documents.</p> </abstract>ARTICLE2021-12-30T00:00:00.000+00:00Has the CJEU Made the First Step to Put a Stop to the Criminalisation of Migration? Commentary to the Judgement in the Case of JZ in the Context of the COVID-19 Pandemichttps://sciendo.com/article/10.15290/bsp.2021.26.06.12<abstract> <title style='display:none'>Abstract</title> <p>The paper presents a critical discussion of the CJEU judgment in the JZ case (C 806/18), in which the Court interpreted Article 11 of Directive 2008/115 that regulates entry ban issuance. The author asks a question of whether an entry ban as a measure limiting the right to free movement has a moral and legal ground in international law and EU law. Moreover, the author focuses on the problem of the criminalisation of irregular migration – both in the context of the established line of the Court’s case law and in the case of a vague national law standard that penalizes illegal stays – the possibility to apply the criminal law concept of error in law and thus exclusion of criminal liability of an illegal migrant.</p> </abstract>ARTICLE2021-12-30T00:00:00.000+00:00The Impact of the Pandemic on Economic Crimehttps://sciendo.com/article/10.15290/bsp.2021.26.06.05<abstract> <title style='display:none'>Abstract</title> <p>This paper aims to outline possible directions of criminal activity that are part of both state and global economic crime. It is not a novelty that periods of economic crises carry particular criminogenic potential, affecting the scale and dynamics of specific crime categories. The ongoing pandemic makes precise data collection or statistical calculations, in the context of the problems described in this paper, difficult. Nevertheless, at this stage, it is possible to indicate certain areas which, from the perspective of criminal law, should be of interest for criminal law specialists, but also criminologists aiming to develop tools to combat the most serious pathologies in business trading.</p> </abstract>ARTICLE2021-12-30T00:00:00.000+00:00Selected Considerations Regarding the Digitalisation of Criminal Proceedings in Light of the Standards of the Council of Europe: Analysis Taking into Account the Experience of the Current Pandemichttps://sciendo.com/article/10.15290/bsp.2021.26.06.04<abstract> <title style='display:none'>Abstract</title> <p>The aim of the article is to prepare an analysis in order to formulate propositions regarding the digitalisation of Polish criminal proceedings as regards the administration of justice. These hypotheses would have merited consideration even pre-pandemic, but they demand even more attention as a result of the pandemic. The pandemic has served to highlight the pre-existing necessity to adapt criminal law to the latest observable technical and technological advances. In light of the above, the first issue to be analysed concerns the conditions, procedures, and possibilities surrounding the collection of evidence electronically, taking into account the most recent relevant guidelines of the Council of Europe. The second issue to be examined will be the adaptation of criminal procedures, including Polish, to the standards stipulated in the Convention of the Council of Europe on Cybercrime of 23 November 2001, in light of national norms regarding evidence gathering. The third issue that will be assessed in this study will be the benefits, risks, or potential of the application of artificial intelligence algorithms in criminal procedure. The consideration of each of the three areas will have regard to the present global pandemic. The article concludes with a concise summary containing the authors’ conclusions and propositions <italic>de lege ferenda</italic>.</p> </abstract>ARTICLE2021-12-30T00:00:00.000+00:00Some Remarks on the Changes in the Polish Penal Code During the Pandemichttps://sciendo.com/article/10.15290/bsp.2021.26.06.02<abstract> <title style='display:none'>Abstract</title> <p>The study indicates the solutions introduced by the amendment to the Penal Code during the pandemic. These are the so-called anti-crisis shields - shield 1.0, shield 3.0 and shield 4.0. The primary role of these laws was to respond to the crises related to the COVID-19 epidemic. Amendments to the Penal Code were introduced in a manner inconsistent with the Constitution of the Republic of Poland and the Regulations of the Sejm of the Republic of Poland. The mere legislative change and increasing punitiveness of the criminal law system and penal policy will not significantly reduce crime. The work is of a presentative and systematising character. The assumed hypothesis boils down to the assertion that the changes to the penal code made pursuant to the so-called anti-Covid laws are irrational and introduced without the required legislative procedure. The study mainly used the formal-dogmatic method.</p> </abstract>ARTICLE2021-12-30T00:00:00.000+00:00The Unclear Picture of Child Sexual Abuse Material (CSAM) Online Volumes During the COVID-19 Pandemichttps://sciendo.com/article/10.15290/bsp.2021.26.06.07<abstract> <title style='display:none'>Abstract</title> <p>The COVID-19 global pandemic altered the social lives of people around the globe and centred our activities around the internet and new technologies even more than before. As countries around the world responded with lockdowns and social restrictions in order to prevent spreading the virus, concerns about the effects of those measures on child sexual abuse materials (CSAM) volumes on the internet and CSAM related offending online arose. While it is impossible to measure the entire volume of CSAM available online and CSAM related offending, there are some indicators that can be used to assess the scale of online CSAM and whether there was an upward or downward trend in CSAM related activity online and reporting over the pandemic time. Such indicators include the number of reports to hotlines combating CSAM, the number of criminal investigations and cases, and the measurements of the offenders’ online activity monitored by law enforcement and other entities. The aim of this paper is to analyse the data available in these areas and see how they picture the CSAM online problem during the COVID-19 pandemic.</p> </abstract>ARTICLE2021-12-30T00:00:00.000+00:00The Dark Number of Insurance Crimeshttps://sciendo.com/article/10.15290/bsp.2021.26.06.06<abstract> <title style='display:none'>Abstract</title> <p>Insurance crime makes is difficult to interpret and measure the scale of undisclosed crime. In the insurance industry, the perpetrator can easily craft a false claim by simulating, for example a traffic accident, injury, or property damage. This causes difficulties in the evidential process and measuring the scale of the phenomenon. The aim of the article is to analyse the phenomenon of the dark number of insurance crimes. This paper includes the analysis of the definition of the term ‘dark number’ and other factors, such the degree of market development, the effectiveness of detection, the level of insurance awareness, and the dimension of social consent in Poland and selected European countries. Defeating the problem of insurance crime and estimating the dark number of insurance crimes requires taking into account the specificity of individual markets and types of insurance. We prove that effective measurement and reduction of a dark number of insurance crime is not possible without the constant updating of knowledge about the phenomenon of insurance crime and the use of advanced IT tools.</p> </abstract>ARTICLE2021-12-30T00:00:00.000+00:00en-us-1