2015 | 37 | 5-50
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To Control or Not, But If So, Then in What Manner? Challenges Associated with the Appearance of New Psychoactive Substances
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Definitions of drug offences must remain in agreement with the principle of nullum crimen sine lege certa, which demands a precise definition of the subject of these crimes, namely illegal psychoactive substances. A basic legislative technique in this regard is the creation of lists of controlled substances determined by annexes to the appropriate legal acts. Their advantage is precision, but the undoubted disadvantage is low elasticity. In the case of the appearance of a new psychoactive substance, it remains legal until it has been placed onto the appropriate list. This did not have much significance when the market was dominated by well-known substances of natural or polysynthetic character, and the appearance of new substances was rare. Already in the 1970s, however, the phenomenon of purely synthetic substances began: so-called designer drugs. They were often primarily created to avoid the existing system of control: sometimes small changes in the molecular chain of an illegal substance yielded a new substance of similar psychoactive qualities that did not come under scrutiny. This phenomenon accelerated significantly in the 1990s. The phenomenon of so-called new psychoactive substances (NPS) became a serious problem, specifically when they began to be offered for sale on a wider scale in special shops (so-called smart shops), or on the Internet as a legal equivalent of an illegal narcotic (so-called legal highs). The race between legislators and chemists “inventing” more and more substances entered a new phase at that time. The answer for legislators in many countries of the world was so-called generic definitions, or analogue definitions, under which whole groups of substances came under control. However, in many countries these raise constitutional objections, due to their partially-determined character. This is why the dominant method is still making lists, which requires the phenomenon of ceaseless revision. Accompanying this is the problem of evaluating the legitimacy of dispersing controls on new psychotropic substances that are provided for illegal narcotics. New psychoactive substances are most often poorly understood during the moment when a decision is being made about their illegalisation: not much is clear about their psychoactive qualities, their potential to cause addiction (dependence potential), their acute toxicity, nor their chronic toxicity. This raises questions about the criteria used for making decisions about illegalisation: are these decisions based in reality on scientific evidence (evidence-based decisions), or are they also taken based on a precautionary principle. In the latter case, banning them is essentially of a political nature and is being done just in case. An example of a formalised procedure of risk assessment linked to new psychoactive substances is the European early warning system carried out under the supervision 374 ARCHIVES OF CRIMINOLOGY of the European Monitoring Centre for Drugs and Drug Addition (EMCDDA). The risk evaluation procedure begins with a technical report prepared by EMCDDA and Europol, who must provide all scientific information on the subject of the given substance. A proper evaluation is performed by a broad scientific committee of the EMCDDA. In its report, the committee presents only the facts. On their basis, a final decision is taken by the European Commission. If they decide on the control option, member countries are obliged to add the substance to their national lists of controlled narcotics. Since the number of new psychoactive substances appearing in recent years has risen dramatically, this system has begun to reach the limits of its efficiency. Due to this, even during the previous term of the European Parliament, work had begun on a new directive about the issue, the draft of which proposed abandoning the system of dichotomous treatment of psychoactive substances as either illegal narcotics or as legal substances. It is to be replaced with a tripartite separation of psychoactive substances into those which present a low risk to health, society and safety (not subject to any limiting measures), moderate risk (subject to bans on them entering the market, but not controlled for research, medical or veterinary goals), and high risk (subject to controls designed for narcotics). The problem of new psychoactive substances, so-called legal highs, appeared in Poland on a wider scale around 2007-2008. The initial reaction of the legislature was of a standard character and consisted of extending the lists of controlled substances. This was done in March 2009, June 2010, and April 2011. It was only in October 2010 that new control mechanisms were introduced. Due to the concept of substitute drugs, “legal highs” were put under administrative controls differing from the control system for intoxicating agents and psychotropic substances. Eventually in July 2015, another amendment to legislation on the prevention of drug addiction, on the one hand, extended the list of intoxicating agents and psychotropic substances by another 114 substances (consequently, the lists used in Poland now included 428 substances). On the other hand, it expanded new forms of control for these substances. Within this framework, the Ministry of Health introduced a list of new psychoactive substances in an annex to the regulations, which eases and speeds up the process of adding amendments. Sanctions associated with the illegal turnover of these substances have an administrative rather than criminal character and do not affect normal possession. Despite attempts to find an indirect way, the consequences of Polish politics towards legal highs are quite paradoxical. Twice after extending the list of controlled substances (in June 2010 and July 2015), an increase appeared (a dramatic one in July 2015) of poisoning attributed to legal highs. This was certainly a result of the market reacting to illegalisation. It was due to the replacement of these newly-illegal substances with something often markedly more harmful.
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