HFHR comments on proposed amendment to Drug Abuse Prevention Act

The Ministry of Health has opened public consultations on the proposal of an amendment to the Drug Abuse Prevention Act. The amendment aims to curb the manufacture and sales of so-called “legal highs”.

In the legal opinion on the proposal, submitted to the Ministry of Health, the HFHR noted concerns as to the proposed changes’ compliance with the European Convention on Human Rights and the Constitution of the Republic of Poland.

Proposal

The legislator wants to introduce new types of crimes, including owning legal highs or placing them on the market.  But, according to the proposed amendment, a list of controlled substances should be compiled not in an Act of Parliament (a statute) but as part of a piece of secondary legislation, namely a regulation issued by the Minister of Health. As noted by the explanatory memorandum appended to the proposed amendment, a regulation can be more easily and quickly updated as compared to a statute, whose modification requires a full-blown legislative process in the Parliament.

Constitutional standards and ECHR

The Helsinki Foundation is highly sceptical of the above solution. We are concerned that it may violate the constitutional principle according to which an act prohibited under a penalty must be defined and described as illegal in a statute that applies at the time of the act’s commission. The Constitutional Tribunal itself has noted the significance of this principle: in a judgement of 8 July 2003, the CT ruled that a statutory provision describing a prohibited act must satisfy minimum precision criteria so that “a recipient of the legal norm in question can substantially comprehend an established prohibition exclusively based on the wording of the statute”.

The European Court of Human Rights, on its part, requires that specific distinguishing elements of the acts that are considered legally prohibited under a penalty must be defined with enough precision to avoid conflicting interpretations.

The Helsinki Foundation concludes that the discussed amendment to the Drug Abuse Prevention Act fails to embrace these guarantees and calls on the Ministry of Health to continue works on this legislative proposal.