Real improvement n Ukraine’s Drug Police or another Show?
A sharp increase in the number of drug addicts and people with HIV in Ukraine is the result of ineffective and repressive drug policy, the authors of this work state. Instead of fighting drug trafficking, they say, the law enforcement bodies fight drug addicts, whereas drug addiction needs to be addressed by those involved in healthcare, not the police.
The government does not want to recognize that the logic of total prohibition has not worked anywhere with the war against drugs not won anywhere. The authors point to positive experience from the UK, Germany, France and other countries showing that harm-reduction programmes are much more effective than the actual war against drugs.
In Ukraine attempts to resolve the problem have largely boiled down to removing narcotic substances, chasing statistical readings and creating the appearance of effective measures against the drug trade. Yet a comprehensive approach is needed, with a shift towards seeing drug addicts as people who are ill and reforms in the law enforcement and medical spheres. Only an effective system for preventing the spread of drug addition and social rehabilitation of people taking drugs, combined with the decriminalization of certain actions linked with the illegal drug trade, can address the problem. Excessive criminalization of drug addition is the main failing of the present drug policy in the country.
Ukraine’s drug policy is also marred by corruption and lobbying, as a result of which more and more young people are becoming addicts with the number of young people using both legal and illegal drugs on the increase.
The State is not providing proper assistance to addicts, nor effective measures aimed at circulating objective information about drugs and the risks they carry.
The existing concept for fighting the illegal drug trade is based on their users with the number remaining roughly constant, meaning stable profits for drug dealers.
General world experience of the fight against drugs over many years shows that its effectiveness is close to nil and the correlation between the severity of prosecution and demand for illegal drugs minimal. The US has some of the strictest anti-drug legislation in the world, yet a high level of drug use, while Holland which is known for its liberal drug policy has a low level thanks to a high level of public awareness of the harm it causes.
Excessive criminalization of drug addiction results in a lack of reliable data regarding the real number of addicts and HIV-positive people in Ukraine, and scale of the drug trade. Official medical and police statistics are far from an accurate reflection of the situation. This means that the bodies called upon to monitor the situation do not have a real picture of the trade and use of illicit drugs.
At present 80% of drug-linked criminal investigations are under Article 309 § 1 of the Criminal Code which basically entails criminal prosecution for individual use of psycho-active substances. A huge number of people are held in places of confinement for offences which do not cause the public real harm.
The system for fighting drugs in Ukraine is extremely expensive, yet is not functioning and needs urgent reform. Taxes must not be aimed at funding drug corruption and systems of extortion like that flourishing under the guise of the fight against drug-related crimes in the Ministry of Internal Affairs, but at treatment of addicts and promoting a healthy lifestyle.
On 13 April 2011 the Presidential Decree No. 457/2011 came into force. This creates, in accordance with Article 106 of the Constitution, a State Drug Control Service [SDCS] as a central body of executive power with its activities being directed and coordinated by the Cabinet of Ministers .
According to the Decree, the State Drug Control Service takes over the role of two departments – the State Committee on Drug Control and the State Service for Medicines and Drug Control as regards sale of drugs, psychotropic substances and precursors in healthcare establishments and production of medical supplies, as well as the licensing of economic activity involving the sale of drugs, psychotropic substances and precursors in healthcare establishments and production of medical supplies.
Concentration within one State body of the functions linked with all aspects of the State’s drug policy is, from the point of view of swift response to its negative features, is undoubtedly a positive factor.
This becomes the main body for formulating and implementing the State’s drug policy.
The Provisions on the State Drug Control Service, affirmed by the Decree, give it the following functions:
formulating and implementing the State’s policy on the sale of drugs, psychotropic substances and precursors and countering their illegal sale within the confines of its powers;
carrying out State regulation and control over the sale of drugs, psychotropic substances and precursors and measures to counter their illegal sale within the confines of its powers;
coordination of the activities of executive bodies in the sphere of sale of drugs, psychotropic substances and precursors and measures to counter their illegal sale within the confines of its powers;
ensuring in accordance with international agreements cooperation and sharing of information with international organizations and the competent bodies of foreign countries in the area of sale of drugs, psychotropic substances and precursors and measures to counter their illegal sale, as well as representing Ukraine’s interests in this area in international organizations;
The Provisions do overall create the impression that the Ukrainian authorities are willing for positive changes to the country’s present drug policy which are aimed at countering the spread of drug addiction and relative adverse factors.
A number of functions are assigned to the SDCS which could promote an improvement in the drug situation through predicting its development, cooperation with the media and public, with NGOs of foreign countries and international organizations, etc. Implementation of the new norms would seem at first glance to open the door to an improvement in present drug policy, in particular through decriminalization of actions linked with personal drug use and the creation of unfavourable conditions for the drug trade.
On closer inspection of the Decree, however, the latest deception becomes clear regarding the prospects for the effective functioning of the SDCS. Item 3 of the Decree instructs the Cabinet of Ministers to submit a draft Law on the State Drug Control Service which will envisage the following inappropriate tasks for such a body:
carrying out investigative operations in order to identify crimes in the area of illicit sale of drugs, psychotropic substances and precursors; legalization (laundering) of income received from criminal activities linked with illicit sale and persons who committed such crimes;
identifying, preventing, stopping and uncovering, detective inquiry and pre-trial investigation on cases involving crimes in the area of illicit sale of drugs, psychotropic substances and precursors; legalization (laundering) of income received from criminal activities linked with illicit sale of drugs, psychotropic substances and precursors;
proceedings in cases on administrative offences in the area of sale of drugs, psychotropic substances and precursors.
This norm of the Decree from the outset makes it impossible to implement the Provisions affirmed by the same Decree, runs counter to current legislation, leads to inappropriate tasks as specified by this norm not in keeping with the main purpose of a central body charged with forming and implementing drug policy, its functions, powers and rights as stipulated by the Provisions.
Should the above-mentioned tasks be fixed at legislative level, the newly created body will be transformed into a law enforcement body as well. That is, it should form and ensure the implementation of the dug policy and at the same time take part in investigative operations, be a body of detective inquiry and pre-trial criminal investigation. This combination of powers, should assessment of the activities be based on statistical figures will inevitably lead to systemic abuse and human rights violations.
Giving such tasks to the newly-created body will also contradict current legislation.
According to the President’s Decree, the SDCS takes on the powers of two bodies - the State Committee on Drug Control and the State Service for Medicines and Drug Control. These bodies are not classified as bodies carrying out investigative operations as per Article 5 of the Law on Investigative Operations. The same norm of that Law prohibits those not stipulated by the Law from carrying out investigative operations.
According to Article 3 of the Law on Measures for countering the illicit sale of drugs, psychotropic substances and precursors, and abuse of them, the body empowered by the law to carry out control over the sale of drugs, psychotropic substances and precursors, and to resolve tasks linked with countering their illicit trade, should infringements be identified apply the relevant measures within the framework of their competence to remove such infringements. Should there be elements of an administrative offence or crime in people’s actions, they are obliged to send information or submit material to the relevant law enforcement bodies involved in fighting the illicit sale of drugs, psychotropic substances and precursors.
The duty regarding identification of the reasons and conditions which led to the crime, according to Article 23 of the Criminal Procedure Code is imposed on bodies of detective inquiry, the criminal investigator, Prosecutor in carrying out detective inquiry, pre-trial investigation and court examination of criminal cases. In Article 101 of the Criminal Procedure Code there is an exhaustive list of who is defined as a detective inquiry body. The State Committee on Drug Control and the State Service for Medicines and Drug Control which the SDCS is the successor to are not in this list. Article 102 of the Criminal Procedure Code only lists as pre-trial investigation bodies the Prosecutor, investigative bodies of the Ministry of Internal Affairs, investigators of the tax police and Security Service investigative bodies.
Thus in order for the State Drug Control Service to carry out the functions envisaged by Item 3 of the President’s Decree, amendments are needed to a number of legislative acts.
However the above-mentioned discrepancies can be eliminated by making amendments to current legislation as a result of which the transformation of the State Drug Control Service into a law enforcement body will negative the essential identify envisaged by the Provisions approved by Presidential Decree, and minimize the prospects for an improvement in the drug policy situation in Ukraine through the decriminalization of actions linked with the personal use of drugs and creating conditions which are unfavourable for drug trafficking.
In conclusion, it should be noted that the inability of the State to provide high-quality normative-legal provisions for implementing State policy on drug trafficking, prevention of the spread of drug addiction demonstrates that an improvement in the situation in the country cannot be expected in the near future.
Abridged from the original in Ukrainian at http://helsinki.org.ua/index.php?id=1303290869