Some constitutional issues regarding control of new psychoactive substances

Legal control of new psychoactive substances requires precise definition of substances subject to control. This is mainly because of the fact that violations of such control provisions bring usually penal responsibility. And for the purpose of such responsibility certain standards regarding precise definition of offences, according to the principle 'nullum crimen sine lege' should be obeyed. It involves not only requirement that offences should be defined with maximum possible precision, but also stipulated that such definitions should be of statutory character, and shall not be ‘devolved’ to legal acts of lower rank. Therefore since about 100 years standard and precise way to define controlled psychoactive substances were schedules containing lists of such substances attached to drug laws. This system was effective as long as the number of controlled substances (narcotic drugs and psychotropic substances) remained fairly stable, and there was no need to supplement schedules often. It changed radically with the ascent of the so called new psychoactive substances, synthetic compounds created exclusively with the purpose of circumventing international and national control systems. Substances placed on schedules were immediately replaced with new ones, which remained legal until scheduled. This started search for more flexible ways to define the notion of controlled psychoactive substance. Three such methods emerged in recent years, namely generic definitions, analogue definition, and so called total or blanket ban. All make system of control more efficient as they make it possible to adjust scope of control better and quicker to the situation on the markets. However, some of those approaches may evoke various legal doubts of constitutional character (depending on the national constitutions). This may regard primarily analogue definition, which may violate prohibition to use analogy for the purpose of criminal law. Similar doubts may involve blanket bans. In Poland the problem regards legal character of schedules attached to the drugs law. Up till August 2018 they were attached directly to the drug law of 2005. Reform introduced in that month ‘downgraded’ those schedules to be attachments to ministerial decree. The purpose of this solution was to make changing those schedules easier and quicker: decision of a minister may be taken within a couple of days, while to change statute requires sometimes weeks or even months. However, this solution may pose a problem from the point of view of certain constitutional requirements: offences have to be defined by a statute, and possibility to use ministerial decrees for the purpose of defining, even some elements of an offence only, is limited. Earlier jurisprudence of the Polish Constitutional Court on that subject is not conclusive, but constitutional doubts about recent reform remain. Interestingly enough in 2012 Czech Constitutional Court held somewhat different regulations of the Czech Criminal Code ‘devolving’ definition of offence to a governmental decree to be unconstitutional. This problem illustrates well a dilemma often faced by drug legislation, namely between efficiency and the rule of law.