Legal measures to combat drug-related problemsin Poland

Sections

ABSTRACT
Introduction
Legal provisions
Penal sanctions
Prosecution
Sentencing
Future action

Details

Author: Maria E. SOKALSKA
Pages: 19 to 25
Creation Date: 1984/01/01

Legal measures to combat drug-related problemsin Poland

Maria E. SOKALSKA
Lecturer, Medical Centre for Post-Graduate Education, Warsaw, Poland

ABSTRACT

The opium poppy, traditionally cultivated for its seeds and industrial purposes, has recently been increasingly used in so called "home technology" as a raw material for the illicit production of opiates. This development has been accompanied by an increasing number of drug abusers, mainly among young people. Law enforcement authorities in Poland recorded in 1979 approximately 8,000 persons abusing drugs and 13,000 in 1983. The number of drug offences known to the police increased from 1,313 in 1979 to 3,014 in 1983, often involving illegal manufacture of opiates. A study of 110 criminals sentenced for drug offences showed that they also abused drugs over periods of several months to several years.

Penal sanctions relating to drug control are provided in different legal instruments. The sentencing policy has not substantially changed over the past several years. The sentence most frequently administered has been the conditional suspension of enforcement of punishment. Effective administration of the penalty of imprisonment for a drug offender engaged in illicit drug trafficking or other criminal acts presenting an exceptional public danger, even when the offender is a drug addict, is one of the basic principles of drug legislation. The law enables the court to commit a drug-addicted offender to an institution, for a period of six months to two years, for treatment of drug dependence before the sentence is carried out, and, in case of successful treatment, the court may reassess the case with a view to reducing or waiving the penalty. A new comprehensive drug law is currently being drafted.

Introduction

During the 1960s drug abuse in Poland was confined to a rather insignificant number of persons who had access to natural narcotics. Following that period, the number of drug abusers began to increase and the patterns of abuse gradually changed. Along with non-medical abuse of narcotic drugs, the interest of drug abusers shifted to a wide range of psychotropic substances produced by the pharmaceutical industry. Law enforcement statistics showed more frequent thefts and forged prescriptions for narcotic and psychotropic substances.1 Subsequent precautionary measures, including stricter control, the introduction of special prescriptions in the form of counterfoil books and increased protection of pharmacies against theft, helped to reverse the emerging trends. However, those measures did not eliminate drug abuse. In response to more rigorous controls, home-grown technologies of processing opium poppies developed in different parts of the country, and, during the late 1970s, poppy straw decoction was the predominant drug abused by young people. Consequently, the Papaver somniferum L., which is traditionally cultivated for poppy seeds and industrial purposes, has gradually become an easily accessible raw material for the illicit manufacture of opiates.

In 1979 the law enforcement authorities in Poland registered 7,945 persons abusing drugs and in 1983 the number increased to approximately 13,000. 2 The majority of drug abusers are young people.

Such a situation required urgent action by legislative and government bodies as well as health services. Educational and preventive measures, accompanied by medical treatment, were introduced first and followed by a move to update drug control legislation in order to respond to the changing needs.

Legal provisions

Hitherto, because of the rather modest scope of the problem, drug abuse control has not been comprehensively regulated in Poland. The provisions, in various legal instruments dating back to different periods of time, do not fully conform to the current epidemiological situation of drug abuse and associated phenomena. The basic legal act remains the Law of 8 January 1951 on pharmaceutical substances, drugs and hygienic products, which set the principles for manufacturing, distribution and control of narcotic drugs. In the meantime, a number of executive ordinances have been issued, including the following: Ordinance by the Minister of Health and Social Welfare of 13 September 1956 on narcotic drugs ; 3 and the Ordinance by the Minister of Health and Social Welfare of 14 May 1951 on the qualification of certain substances as narcotic drugs, with subsequent amendments 4

1 For details see C. Godwod Sikorska, A. Bielewicz and J. Moskalewicz, Drug Abuse in Poland (Warsaw, Institute of Psychoneurology, 1981).

2Based on statistics provided by Citizens' Militia Headquarters for the reporting years.

3For details see Dziennik Ustaw (Official Gazette), No. 42, item 196.

4For details see Dziennik Ustaw (Official Gazette), No. 28, item 221, No. 42, item 195 (1956), No. 61, item 91 (1961), No. 10, item 89 (1970), No. 4, item 24 (1976).

Penal sanctions

Some of the penal sanctions relating to drug control, as provided for in different legal instruments, are as follows:

  1. Article 29 of the Law of 8 January 1951 stipulates that "any person manufacturing, converting, importing, exporting, transporting, storing or marketing a narcotic drug without a licence shall be liable to imprisonment for a term not exceeding five years and to a fine". A relevant legal provision permits confiscation of a narcotic drug as an object of the crime along with the tools and equipment used for its commission;

  2. Article 30 of the Law of 8 January 1951 provides that "any person using a narcotic drug without a doctor's prescription in the company of another person shall be liable to arrest for a term not exceeding one year or to a fine or to both";

  3. Article 161 of the Penal Code relating to crimes against life and health, provides that "any person who, having not been authorized to do so, supplies an intoxicant to or induces another person to take an intoxicant shall be liable to imprisonment for not more than five years".

The foregoing does not complete the list of penal measures relating to drug control. Many other criminal acts, as described in the Penal Code, can be committed under the influence of or with the aim of procuring narcotic drugs, such as crimes against property, family or life, counterfeiting documents and traffic accidents.

Certain terminological difficulties, complicated by an ever-growing market for new narcotic and psychotropic substances and multiple drug abuse involving pharmaceutical and other chemical substitutes, present numerous problems of interpretation in applying penal provisions relating to drug control.

Opium poppy cultivation is regulated by an Ordinance of 10 June 1983 issued by the Minister of Agriculture and Food Economy. This Ordinance introduced the obligation of registering poppy plantations as well as the requirement that farmers sell poppy straw to state institutions only. Penal sanctions for non-observance of the provisions regulating opium poppy cultivation are an additional measure to a Decree of 29 October 1952,5 intended to restrict accessibility to narcotic raw materials.

Prosecution

It is usually quite difficult to gather conclusive data on drug-related crimes. However, law enforcement agencies report a growing crime rate in the population of drug addicts.

5 For details see Dziennik Ustaw (Official Gazette), No. 44, item 301.

The number of drug offences known to the Citizens Militia Headquarters during the period 1979-1983 are shown below by year: 6

Recorded drug offences

Year

Total

1979 1,313
1980 1,523
1981 2,083
1982 1,911
1983 3,014

Most drug offences were committed in connection with the violation of article 29 of the Law of 8 January 1951, particularly relating to the illegal manufacture of narcotic drugs, which mainly involved the illegal processing of opium poppy. The product manufactured in this way contains morphine and codeine. The narcotic drugs are produced by drug abusers either for their own use or for sale to colleagues in the group. Poland has not had organized criminal syndicates of manufacturers and distributors of narcotic drugs. Close and direct connection between illegal manufacturers and users of narcotic drugs, as documented by law enforcement records and research, makes it difficult to detect this kind of crime. Penal sanctions for using drugs in the company of other persons are well known to drug abusers and, when investigated, they always testify that they acted alone. Also, group solidarity of drug abusers considerably inhibits application of article 161 of the Penal Code concerning the supply of narcotic drugs.

Mainly because of the large availability of home-made opiates, the number of forged prescriptions decreased from 276 in 1980 to 97 in 1983. As a result of special protective measures, such criminal activities as thefts and burglary to procure drugs from public pharmacies have shifted towards other sources. Although the nominal value of substances thus obtained was insignificant, the number of such cases increased from 193 offences in 1979 to 312 in 1983.

Sentencing

Criminal cases directly related to drugs represent a small fraction of all court proceedings in Poland. They are usually considered by common courts, composed of a judge and two members of the jury, whose task is to determine the extent of damage effected by the offence, the degree of public danger it has produced, the motives underlying the offence and the personality characteristics of the perpetrator. It is for the purpose of assessing the perpetrator's tempore criminis mental health that psychiatricexperts are invited to testify before the court. In situations where the offender is affected by drug use, or when perpetrating the offence the offender reveals symptoms of drug dependence or emotional craving for drugs, opinions of experts may have an important bearing upon the sentence.

6Based on statistics provided by Citizens' Militia Headquarters for the reporting years.

A study of 1l0 criminal cases carried out by the Research Institute on Judicial Law of the Ministry of Justice from 1 January to 30 June 1983 showed that persons sentenced under article 161 of the Penal Code and articles 29 and 30 of the Law of 8 January 1951 had used narcotic drugs with varying frequency during periods of several months to several years.

Under Polish law, criminal responsibility can be avoided or restricted if, when committing the offence, the perpetrator was mentally incapacitated or had a limited mental capacity. According to article 25 of the Penal Code, this principle is not applicable to cases when, while taking drugs, the offender anticipated or could have anticipated the effects of drugs upon his or her mental capacities. In this connection, two distinct approaches are observed: a medical approach, which tends to subjectivize the responsibility and to qualify the perpetrator as a person of diminished mental capacity; and a social approach, which stresses the need to protect society against criminal acts committed under the influence of drugs.

It is, however, maintained that the sentence should involve a punishment which could be both preventive, from the point of view of society, and educational, from the point of view of the accused.

According to the data of the Research Institute on Judicial Law of the Ministry of Justice, the types of punishment administered by courts in Poland during the period 1979- 1982 for drug-related crimes under article 161 of the Penal Code and articles 29 and 30 of the Law of 8 January 1951 are summarized in the following table.

Result of the analysis

 

1979

1980

1981

1982

Technique

(a)

(b)

(a)

(b)

(a)

(b)

(a)

(b)

Imprisonment
5 11 4 30 5 22 3 47
Conditional suspension of enforcement of punishment
15 40 10 80 16 79 11 196
Restricted liberty
2 10 8 16 5 5 1 12
Fine
1 7
-
4
-
2 1 4
Total
23 68 22 130 26 108 16 259

Note: (a)refers to sentences under article 161 of the Penal Code, and (b) to sentence under articles 29 and 30 of the Law of 8 January 1951.

Penal policy has not changed much over the past several years. The sentence most frequently administered has been the conditional suspension of enforcement of punishment. During the probationary period courts acquire a possibility of placing the offender under different obligations, including medical treatment, employment or schooling. Linking this form of punishment with obligatory medical treatment outside prison is in the opinion of the courts and in the public perception the best possible means of treating young offenders with a view to achieving their social reintegration. The experience of Poland suggests that positive results of the treatment of offenders can be expected when the actions of the court have the support of well-prepared guardians and social workers who regularly assist the offender in removing obstacles to his or her normal functioning in a community.

The punishment of restricted liberty, enforced in the form of unpaid work for public purposes, and the penalty of fine are rather seldom resorted to by the courts, mainly because of the lack of a permanent source of income of the defendant or because the condition of his or her health does not allow the performance of regular work.

There is no question as to the need for severe punishment of offenders who have engaged in drug trafficking to gain profit. It is also recognized that effective and unconditional administering of the penalty of imprisonment for such acts represents one of the basic principles of drug control. Polish courts impose the sentence of imprisonment whenever recidivism is involved or when a given criminal act has presented an exceptional public danger, even when the offender is a drug addict. Article I02 of the Penal Code, however, enables the court to commit the drug-addicted offender to an institution, for periods of six months to two years, for treatment of drug dependence before the sentence is carried out. Successful treatment may subsequently provide the court with a strong argument in favour of reassessing the case with a view to reducing the penalty or waiving it altogether.

Future action

There have recently been efforts to draft a comprehensive law to regulate matters relating to drugs. Extensive discussions have been held in which views favouring repressive measures for a new law clashed with more permissive approaches. The draft law has now been transmitted to the Polish Parliament for consideration and adoption.

The draft in its present form follows a preventive and treatment model of drug control. Government bodies are vested with an obligation to carry out drug-abuse preventive action and, for this purpose, to lend support to the activities of social organizations and churches. It also envisages the establishment of a committee for the prevention of drug abuse in the office of the Prime Minister to co-ordinate government policy and action in matters concerning narcotic drugs. Preventive, treatment and rehabilitation activities are to be financed from a special fund. The draft envisages a further tightening of control of narcotic drugs and psychotropic substances, in keeping with relevant international conventions. Cultivation of the opium poppy and the cannabis plant are to be subject to more strict controls. Important provisions of the new draft pertain to measures to be taken by government agencies in favour of drug addicts or their families, such as finding employment, providing treatment or offering financial assistance. Likewise, the draft proposes voluntary treatment, unless applicable to minors, based on the assumption that success of therapeutic and rehabilitation efforts depends on the motivation of the patient and his or her determination to stay drug-free.

Under the new draft law, penal provisions are also to be changed. The draft envisages a differentiation between punishable acts and penalties, as well as stricter penal sanctions against drug traffickers and manufacturers who gain illegal profit and promote drug dependence. No change is envisaged in penal sanctions against persons whose only offence has been a drug-taking habit. For such a person, a prison sentence cannot be effective and the problem should be dealt with by individuals and institutions in the community, involving medical services, human and material resources, the family and, above all, the person taking drugs.