According to NIK, for almost one and a half years (by the end of the audit), the Minister of Health and the Chief Sanitary Inspector did not make sure the list of controlled substances was updated. As a result, although the new hazardous substances were available in the market, there was no criminal liability for their production, possession in significant quantities or sale.
Issues related to trade in new recreational drugs via internet were not solved, either.
NEW RECREATIONAL DRUGS (previously designer drugs):
- new psychoactive substances – are found on the list published by the Minister of Health. There is criminal liability for their production, possession in significant quantities or sale (up to 12 years of imprisonment for bringing significant quantities of those substances to the market);
- alternative stimulants – products containing hazardous substances, not found on the list of the Minister of Health. There is an administrative fine for production or sale of alternative stimulants from PLN 20 thousand to PLN 1 million. Administrative proceedings are conducted by the State Sanitary Inspectorate.
Alternative stimulants found on the ministerial list of controlled substances, e.g. as new psychoactive substances are charged with criminal liability.
The law was changed in August 2018. The amended Drug Abuse Prevention Act took account of some recommendations NIK made in 2017 after its audit: “Preventing the sale of designer drugs”. The audit clearly showed ineffectiveness of efforts taken at that time. NIK suggested equalising designer drugs with narcotics and thus penalising them. And that amendment was made but is did not comprise all new recreational drugs.
The NIK audit revealed that the Ordinance of the Minister of Health on the list of psychotropic substances, drugs and new psychoactive substances (effective from August 2018) was amended only once in the audited period - in August 2019. The following amendment was made after the audit, in April 2021. Until then, hazardous substances, posing a threat to human life and health stayed on the market, without the possibility of using penal sanctions against perpetrators. From August 2018 to June 2020, officers of the Police and the National Revenue Administration detected those substances in 166 cases.
Nevertheless, after the law was changed in 2018, already in 2019 the number of reported cases of actual and suspected intoxications dropped nearly by half – from almost 4300 to over 2100. The decreasing trend is also confirmed by the data on the first half of 2020 when about 560 such cases were reported.
Legal loophole
New regulations are not precise, though. As a result of the amendment to the Ordinance on the list of substances of 2019, part of controlled substances lost the alternative stimulant status and became new psychoactive substances, covered by criminal liability.
As a consequence, some acts could not be covered with penal proceedings because they were not yet a minor or gross misconduct on the date they were committed. Administrative proceedings did not apply, either, because the substances they were related to changed their status. According to NIK , it shows that in case of subsequent amendments to the Ordinance on the list of substances there is a significant risk that the said acts will not be subject to any proceedings and their perpetrators will not bear any consequences.
This situation may also give rise to corruption which is driven by unacceptable arbitrariness in applying the law by state institutions. The findings of NIK auditors show that in seven of 10 audited district sanitary and epidemiological stations some administrative decisions were issued, although there were no grounds for them.
Limited possibilities of the State Sanitary Inspectorate
The amendment to the Drug Abuse Prevention Act did not solve problems related to selling new recreational drugs via internet. The State Sanitary Inspectorate has no specialists or adequate tools to remove or block the content on websites and social media accounts related to the conduct of illicit operations. In this situation the Police may intervene, filing their objections to the websites administrators who are there to decide on possible actions. In 2018, in 7 requests made in such cases, only in one case the administrator blocked the indicated website. There are no effective opportunities to react in case of foreign internet domains. If a suspicious website is found on a server in one of the EU countries, the only thing the Polish Police may do to is to inform a given country’s services about that fact.
Since the new law came into force, i.e. from August 2018 to June 2020, the State District Sanitary Inspectors conducted 293 audits nationwide related to alternative stimulants but none of them revealed illicit operations. At the same time, the Police, the National Revenue Administration and the Border Guard detected alternative stimulants in 542 cases. In that situation, activities of the district sanitary and epidemiological stations were limited to administrative proceedings based on evidence provided by other entities.
The number of inspections of the facilities suspected of being the place of sale and production of alternative stimulants dropped nearly three times. Also the number of drug-related administrative decisions issued by the State Sanitary Inspectorate went down.
In 2020, activities of the State Sanitary Inspectorate bodies in the area of alternative stimulants were limited due to the SARS-CoV-2 spread and transfer of the Inspectorate employees to pandemic-related issues.
Fines were not an effective tool in the fight against alternative stimulants. This has been confirmed by their low recoverability for many years now. However, it went up from less than 3% in 2010-2016 to 6.5% in 2017-2020. It means that perpetrators are not liable for acts related to alternative stimulants.
In the audited district sanitary and epidemiological stations, from January 2017 to June 2020, over PLN 5 million fines were imposed but only less than 4% of this amount was recovered.
At the same time, penalising acts related to new psychoactive substances enabled the Police to start criminal proceedings. In 2018 (since August), 382 proceedings were initiated, in 2019 - 847, whereas in the first half of 2020 it was 377.
Unsolved problems
The amendment to the Drug Abuse Prevention Act imposed an obligation on medical facilities to report suspected intoxications and deaths caused by the new recreational drugs to the State Sanitary Inspectorate.
The Chief Sanitary Inspector created and kept the register of intoxications with alternative stimulants or new psychoactive substances and verified the reports. The State Sanitary Inspectorate is not eligible to enforce the obligation to report the intoxication cases. Therefore, the data gathered in the register may be incomplete.
Irregularities in the functioning of the system of reporting actual and suspected intoxications with new recreational drugs were found by NIK auditors in four of 10 audited district sanitary and epidemiological stations. They mainly consisted in delayed transfer of data to the database of the State Sanitary Inspectorate. In some cases the delays exceeded 9 months.
Laboratory tests were an issue due to the legal loopholes. It was highly questionable if specimen tested in laboratories of other entities could be used in administrative proceedings.
The issue of transferring products among bodies which conduct relevant proceedings has not been solved, either. Such products were sent to the audited district sanitary and epidemiological stations e.g. by mail, which should not be the case.
The NIK audit also showed that the issue of storing substances in district sanitary and epidemiological stations, which lost the status of alternative stimulants and remain beyond the area of operation of the State Sanitary Inspectorate bodies, remains unsettled. In some stations such products were stored for many years.
NIK recommendations
to the President of the Council of Ministers
- in view of the audit findings, a comprehensive inter-ministerial analysis should be made as the basis to allocate tasks or rights in the area of alternative stimulants to the state bodies, potentially most effective in preventing the functioning of the illegal market of those substances.
to the Minister of Health
- the Ordinance on the list of substances should be updated on an on-going basis in view of recommendations made by the Threat Risk Assessment Team;
- temporary provisions related to the amendment to the Ordinance on the list of substances should be established in a way to clearly define consequences of substances losing the alternative stimulant status on the grounds of administrative proceedings conducted by the State Sanitary Inspectorate bodies;
- it should be analysed if replacing administrative fines with another tool is justified to reflect the liability of persons producing alternative stimulants or bringing them to the market;
- conditions should be provided to accept tests made upon order of other state institutions (the results of which show that a given substance has the alternative stimulant status) in administrative proceedings conducted by the State Sanitary Inspectorate bodies.
