Since the beginning of the twentieth century, the most common method of defining psycho-active substances for legislative purposes has been to compile lists of these substances and append them as schedules to the statutes that regulate them. This method leaves no doubt as to which substances are legal (and what restrictions, if any, apply) and which are illegal, and is therefore particularly useful from a criminal law standpoint. Moreover, it conforms to the principle nullum crimen sine lege. The problem with this approach, however, is that it lacks flexibility. Any new psychoactive substance is legal unless or until it has been appropriately scheduled. And modifying schedules to statutes can involve lengthy parliamentary proce-dures. This is not particularly problematic so long as the number of available narcotic drugs and psychotropic substances remains relatively stable, and new substances do not appear overly frequently. This was the situation throughout most of the twentieth century.
This state of affairs changed dramatically at the turn of the twenty-first century. Advances in chemistry and pharmacology opened up practically unlimited possibilities of obtaining new psychoactive substances by manipulating the molecular chains of existing ones. The market began to be saturated with these substances, which were created for the sole purpose of cir-cumventing existing controls. Specifying these new substances as controlled drugs and add-ing them to statutory schedules could be a time-consumadd-ing process. Moreover, it seldom solved the problem, as these newly banned substances were soon substituted with new, unscheduled ones.1 The traditional scheduling system was therefore deemed to have reached the limit of its effectiveness, and the search for new methods of defining controlled sub-stances began 2
Four methods have been implemented or proposed. The first involves temporary sched-uling, i e pursuant to an administrative decision, a new substance is temporarily placed on a provisional schedule, pending legislative amendments. The second method employs a generic definition. This involves listing specific chemical formulas and banning not only the
sub-1 winsToCk, A – raMsey, J. D.: Legal Highs and the Challenge for Policy Makers. Addiction, 105.
(2010) 1685–1687.
2 hughes, B – Blidaru, T : Legal Responses to New Psychoactive Substances in Europe. Lisbon, 2009. http://www.emcdda. europa.eu/attachements.cfm/att_78982_EN_ELDD%20Control%20 systems%20report.pdf (accessed on 1 March 2019).
Controlling New Psychoactive Substances in Poland
stances explicitly enumerated in the schedules, but all the possible derivatives having the same formulas as well. This renders any attempt to substitute an illegal substance with an uncontrolled variant ineffective, as the variant is likewise designated illegal. The German New Psychoactive Substances Act of 2016 is a case in point. The third approach employs an ana-logue definition. Not only are substances placed on schedules of narcotic drugs and psycho-tropic substances controlled, and therefore prohibited, but so are any other substances that have similar chemical properties and/or produce similar effects in the human organism, and/
or which can produce effects similar to those caused by narcotic drugs or psychotropic sub-stances. This method is used in e.g. the United States Federal Analogue Act of 1986. Finally, the fourth method introduces a blanket ban, i.e. all substances with psychoactive properties, except those explicitly licensed or otherwise approved, are banned by default. The excep-tions primarily apply to alcohol, tobacco, certain foodstuffs (e.g. coffee and tea), and author-ised medicines. This is the method adopted by both the Irish and British Psychoactive Sub-stances Acts of 2010 and 2016 respectively.
All these approaches potentially have problems. These concern not only their policy effectiveness,3 but also their compatibility with the principle of nullum crimen sine lege, i e the fundamental principle governing criminal liability. This means that criminal liability and punishment cannot apply to any act not proscribed by a statute enacted prior to the commis-sion thereof. Moreover, every element of the legal definition of an offence must have a clear and precise meaning, criminal liability cannot be based on analogy, and acts can only be punishable if prohibited explicitly or by necessary implication. This serves two purposes:
(i) it limits, or even precludes, discretion in the way the state exercises its power to punish;
(ii) it makes it possible for every citizen to know in advance what is prohibited under the threat of punishment, and what is not. This principle therefore constitutes a fundamental guarantee of civil liberties.
All this has specific consequences for drug laws and definitions of drug offences. Mod-ern drug legislation helps enforce a worldwide prohibition on illicit drugs by banning the production, importation, exportation, trafficking, sale, possession etc. of various psychoac-tive substances other than for medical and research purposes, and by subjecting violations to criminal punishment. It is therefore essential to specify which substances constitute con-trolled or illicit drugs. Moreover, any method used to designate them must satisfy certain standards of clarity and certainty in order to comply with the principle of nullum crimen sine lege. From this standpoint, schedules are the safest option, as they leave no doubt as to what is prohibited and punishable, and what is not. Much the same can be said about the generic definition. It is precise enough to clearly indicate the boundary between legal and illegal behaviour. The analogue definition, however, is problematic in that it seems to violate the requirement that prohibition and punishment cannot be based on analogy, or expanded
inter-3 reuTer, P – Pardo, B.: New psychoactive substances: Are there any good options for regulating new psychoactive substances? International Journal of Drug Policy, 40. (2017) 117–122.
Krzysztof Krajewski
pretation, when construing criminal statutes. The requirement that interpretation be strict pre-vents punishment for acts that are only similar to what is explicitly banned, and similarity is the very essence of the analogue definition. This may be unacceptable, especially in some continental European jurisdictions. A blanket ban may raise similar concerns, as this sort of regulation may be deemed too vague for the purpose of defining offences.
Since 2008, Poland has had more problems with new psychoactive substances (NPS), or legal highs, commonly referred to as “dopalacze” (“afterburners”), than most other European countries 4 The legislative responses to the problem illustrate the various dilemmas related to the legal control of these substances only too well. The initial response of the Polish authori-ties was to establish a “two-track” system, comprising penal and administrative components.
The penal component involved controlling NPSs with the traditional drug control measures provided by the Drug Abuse Prevention Act (DACA) of 2005. New substances were sched-uled as narcotic drugs or psychotropic substances. Once placed on a schedule appended to the DACA, the substance became subject to it, i.e. its manufacture, importation, exportation, trafficking, use, possession etc. constituted criminal offences pursuant to Chapter 7 thereof.
Placing a substance on a schedule always required a legislative amendment to the DACA. In Poland, this is usually a burdensome and time-consuming procedure that can take several months. Nevertheless, it has been used four times since 2009.5
The administrative component was established in 2010 by amending the DACA and the State Sanitary Inspectorate Act of 1985. The newly added Art. 44b of the DACA prohibited the production, importation and/or offering for sale of any substances classified as either new psychoactive substances or substitute drugs. Therefore, in addition to narcotic drugs and psychotropic substances, two new groups of controlled substances were created.6 Under Art.
2, Item 11a, of the DACA, a new psychoactive substance was defined as any substance placed on a special schedule that was not appended to the DACA, but to a special executive order issued by the Minister of Health. Therefore, unlike schedules of narcotic drugs and psycho-tropic substances, which can only be amended by statute, this new schedule could be amended by the Minister. This was intended to ensure a faster response to the appearance of new substances. A substitute drug was alternatively defined in Art. 2, Item 27, of the DACA as any substance that affects the human central nervous system similarly to narcotic drugs or psychoactive substances, or which can be used for similar purposes as narcotic drugs or
psy-4 See for example Pirona, A – Bo, A – hedriCh, D. – Ferri, M – Van gelder, N – giraudon, I – MonTanari, L – siMon, R – MounTeney, J.: New psychoactive substances: Current health-related practices in responding to use and harms in Europe. International Journal of Drug Policy, 40.
(2017) 84–92.
5 In March that year, 1 new substance and 16 plants were placed on schedules appended to the DACA. Seven 7 substances were added in July 2010, 23 in April 2011, and an astonishing 114 in April 2015.
6 For the sake of simplicity, the present text refers to the version of this provision introduced in 2015.
The original 2010 version was somewhat different.
Controlling New Psychoactive Substances in Poland
choactive substances. In fact, this definition has an analogue character. This category there-fore encompasses any substance of a psychoactive nature that is not scheduled explicitly as a narcotic drug, psychotropic substance or new psychoactive substance, unless – like alcohol, tobacco, and some food products – it is explicitly approved for production, importation, wholesale and retail sale, consumption, etc. by specific legal provisions. As there is no sched-ule of such substances, this category is open-ended.
The above definition of a substitute drug occasionally resulted in Poland – along with Ireland and UK – being numbered among those countries that had a blanket ban on psychoactive substances 7 However, this is only partly correct. The new regulations only established a blanket ban in terms of administrative law; violations did not constitute criminal offences (as they do in Ireland and the UK). The blanket ban (and the ban on new psychoactive sub-stances) was not to be enforced by law enforcement agencies and the criminal justice system, but by an administrative agency, viz. the State Sanitary Inspectorate, using administrative financial sanction. This sanction was between 20 000 PLN (approx. 4700 €), and 1 000 000 PLN (approx. 233 000 €), which admittedly made it quite severe, but it was not a penalty under the criminal law. Moreover, criminal law sanctions for provisions regarding narcotic drugs and psychotropic substances applied to a wide range of acts involving them. The administrative sanction for violating the ban on new psychoactive substances and substitute drugs was only applicable to production, importation and offering for sale, but not e.g. for possession
The government and the legislature, usually all too eager to resort to the criminal law to remedy any social ill, baulked. Although legal highs were considered to pose a very serious threat to public health, criminalising all such substances in the same way as heroin or cocaine seems to have been too drastic a step. There were probably other reasons for this hesitation as well. Theoretically, it was possible to criminalize new psychoactive substances and even substitute drugs by having them incorporated into the definitions of the offences in the DACA. This solution, however, would have raised all sorts of legal objections and reserva-tions, the most serious of which concerned the potential criminalisation of substitute drugs, as they were defined by analogy. Whether anything defined this way can be acceptable as an element of an offence is highly dubious. Administrative sanction therefore seemed to be safer from a constitutional perspective.
Somewhat different doubts, albeit not of a completely different nature, could arise with regards to the definition of a new psychoactive substance. Here, a traditional scheduling method was used, but for ease of amendment, a respective schedule was attached to the execu-tive order (not the DACA) by the Minister of Health. Again, there were no particular prob-lems with such a definition being used for the purpose of imposing administrative sanctions.
7 reuTer, P – Pardo, B.: Can new psychoactive substances be regulated effectively? An assessment of the British Psychoactive Substances Bill. Addiction, 112. (2017) 25–31.