Poland reforms drug policy. You do legal highs? You are a criminal!

Polish Parliament had unanimously approved an amendment to the drug law. Law and Justice is contributing yet another chapter to the pointless fight against legal highs in Poland.

It turns out that the ruling party and the opposition parties are capable of cooperating! Members of the Parliament nearly unanimously voted in support of the government’s amendment to the anti-drug law. All of the deputies from Law and Justice (PiS), Civic Platform (PO), and nearly all the deputies from The Modern (Nowoczesna) — excluding one person who abstained from voting — voted in favor of the amendment. In total, there were 387 deputies who voted in favor, 5 against, and 8 who abstained from voting.

A draft law of the anti-drug bill was pushed through the legislative path very quickly. On Thursday, the project went through the first reading just after the Council of Ministers had officially confirmed it. Friday morning, Health Committee meeting (which lasted less than 15 minutes) accepted it in a version proposed by the Ministry of Health, rejecting all the amendments suggested by the Civic Platform. But maybe that’s for the better — the ideas of the opposition were even less reasonable than the ones put forward by the current government. Voting in the Senate and signature of the president is a mere formality. The amendment will enter into force on November 1st. Goal: the crackdown on legal highs.

We have a problem with legal highs

The problem is not an imaginary one. According to the available, and as emphasized by the Ministry of Health, incomplete information, in just one month around 300 people in Poland get poisoned by legal highs. On the other hand, a report prepared in 2017 by EMCDDA (European Monitoring Centre for Drugs and Drug Addiction) indicates that in 2016, 66 new synthetic psychoactive substances were identified. Common knowledge: synthetic cannabinoids that imitate marijuana can kill, just like the stimulants imitating to be amphetamine.

How Facebook bans life saving advice

For this reason, the European Union obligated its member states to monitor new psychoactive substances (a technical term for legal highs). From now on, the list of the controlled substances will be issued by the regulation of the Minister of Health (and more specifically: its appendices) and not, like at the moment, the bill itself, which means that putting new substances on the list will be way faster. “This will allow for the control of newly appearing substances within the period of 6 months, which is the EU requirement and also for application of generic definitions to whole substance groups. This should exert a significant impact on restricting new substances and products in the market of NPS, especially these whose chemical structure will change only in terms of their substituents,” says Piotr Jabłoński, the director of the Polish Office for Combatting Drug Abuse.

The EU does not abide its member states to punish for the possession of legal highs. However, under the new amendment to the anti-drug law, new substances are covered by the criminal law. Already the possession of them can be punished with a fine (and restriction or deprivation of liberty in case of possession of large quantities). The Ministry of Health justifies this by saying that legal highs are as dangerous as traditional drugs and so they should be treated in the same way. Of course, according to the Ministry, it’s about “health and safety, especially of young people.” In case of negligible amounts dedicated to one’s own use, the law enforcement authorities have the rights to drop the investigation already before pressing the charges. The so-called substitute substances, which work similarly to drugs, but are not on the register of new psychoactive substances, will continue to be covered only by the administrative law.

“In my opinion, this is a measured approach, on one hand strengthening the tools to combat drug crime, and on the other hand – through a special treatment of the consumers of the so-called legal highs – respecting the priorities of the public health, utilizing the tools of from education, prevention, therapy, and harm reduction,” continues Jabłoński.

Romanian Roulette: Shooting up in Bucharest

What’s the problem?

There is a number of problems. The first one – the potential lack of accordance with the constitution of such a solution. Professor Krzysztof Krajewski, a criminologist from the Jagiellonian University and the member of the Academic Committee of EMCDDA talked about this in an interview with Krytyka Polityczna. “The appendix to the regulation of the Minister of Health cannot serve to define the crime. The prevailing view is that the crime and offences must be defined at the level of legislation. I believe that before 2015, the Constitutional Court would have considered the suggested solution incompatible with the Constitution,” says Krajewski.

Even though right now the Court, under the leadership of Mgr. Julia Przyłębska, would have proclaimed this amendment to be incompatible with the fundamental law, there is also another problem with the proposed changes. As the data collected by the Social Initiative for Drug Policy show, it is rare that the legal procedure in case of possession of negligible amounts of drugs for one’s own use is dropped, despite the fact that this kind of possibility (as guaranteed by the article 62a of the anti-drug bill) has been available for the past couple of years. Jabłoński is right that the proposed law gives similar possibilities in case of new psychoactive substances, but in the current political climate, it is hard to imagine that the police and prosecutor’s office will decide on a soft approach to the users of any illegal psychoactive substances.

Finally, the third problem – despite this loophole, the draft law is based on a view widespread among the politicians: punishing for drugs decreases overdose, deaths, poisonings, and dependency from them.

“Referring to the punitive sanctions can change some things, but the experience shows that the market for new psychoactive substance, just like any other market, adjusts itself very fast to any changes in legislation,” said Krajewski in the interview that we mention.

We’re still far away from treating drug dependency like diabetes

Delegalizing new substances does not solve the problem, because once present in the market, these substances will remain in the market for a long time. Once they are gone, they will be replaced by new, less commonly known, and therefore more dangerous ones. And what is the chance that they will be gone? Small, because a lot of legal highs in our market come from China, where their production is fully legal.

Agata Kwiatkowska, a therapist who helps users of new psychoactive substances and the Director of the Program for Harm Reduction at the Foundation for Social Education, holds a similar view. “We have to understand that criminalizing more psychoactive substances does not reduce their demand or supply. On the contrary, it leads to the increase of negative health and social consequences. Putting more substances on the list of banned substances is a pointless sentence on young people, who need education and support, and not labels of criminals.

Another problem: legal highs, also known as new psychoactive substances, are relatively new inventions. We don’t exactly know what they do to our bodies. How much should you take? How long should you wait so that it hits you? When can you suspect that you were given powdered water? What can be mixed with what, and what should not be mixed with anything, because it will make you puke all night, and what not to take under any circumstance because your heart will stop working or your brain will explode? What to do in case of a bad trip – walk it out, talk it out, or maybe stuff the culprit with Nutella? And what to do if someone goes too far? Is aggression a result of the substance or a momentary phase which will fade away if you occupy the substance user with some board games or Winamp visualizations (does anybody even remember what that is?). Do the pale skin and slow breath mean that the dude is falling asleep or about to die? The lack of this kind of knowledge means that drug users or medical workers don’t know what to expect from legal highs.

In the case of traditional psychoactive substances – from alcohol through marijuana and hard drugs – this knowledge, even if it is incomplete, would be usually passed on by more experienced users to the new ones. I am not idealizing the old times when you wouldn’t know what exactly was added to the drugs that you bought. There would be urban myths about crushed glow tubes added to amphetamine or marihuana glazed in disinfectants. The drug’s components and saturation of the active substance were the dealer’s secret. And this was only true if the dealer knew anything himself.

Everything that’s wrong with Polish war on legal highs

However, one would know what to expect, more or less. Medical staff, in turn, knew the symptoms of overdose and they knew what to give to the patients to save their lives. When it comes to legal highs, this knowledge is simply missing, and punishing for their possession isn’t going to magically make that missing knowledge appear.

Legal highs registry

There is one solution suggested in the new bill which could actually help in reducing harm generated by the intake of new psychoactive substances – the registry of poisonings with legal highs. It is supposed to collect information about the substances, selected data of the victims, including their initials. This kind of registry should have been made years ago, when then prime minister Donald Tusk decided to “sort out the problem with legal highs”. He could have helped monitor the scale of the problem and maybe now we would be able to base our conversations on facts. We would have known what substances are the most dangerous ones and we would be working out ways to minimize harm. Additionally, we need to admit that the data of the victims are not necessary to coordinate this kind of registry.

Unfortunately, penalizing the possession of legal highs can effectively nullify the potential benefits of such a registry. A lot of times, the victims of poisonings and overdose are co-users of the substances. These people can be charged with administering the substance which is punishable by up to three years of prison. If they give the substance to an underage person, then the threat of the punishment is extended up to 8 years (and 6 months at the least). When possession and selling will be punishable by prison term, calling the ambulance will involve the risk of facing severe legal consequences.

“We are dealing with a paradox, which is that people are afraid to seek help because admitting to one’s addiction or problematic use equals to admitting to a crime. What is even worse, these people are at a much higher risk of being infected with HIV or hepatitis,” adds Kwiatkowska.

What to do?

What should be done, then? Let’s accept the fact that psychoactive substances cannot be eliminated from social life and try to reduce the harmful effects of their use. What does that mean in the context of legal highs? Most importantly, the understanding of where their popularity comes from. And a lot seems to indicate that people take them because of restrictive approach towards marijuana, a drug, which in the end is not that harmful. This is another weak point of the new amendment to the law: dangerous legal highs will be treated with way more leniency than marijuana which is relatively safer. People use legal highs not because their legality suggests that they are less harmful, but because once caught with the drug, they won’t have to deal with the same kind of legal repercussions.

Death by disdain: the fate of drug users in Russian-occupied territories

A solution compatible with reason and experience would be to decriminalize weed – as called for by Piotr Liroy-Marzec from the at the Polish Parliament – and in the future, tolerance in the Dutch style. The goal of the Dutch model, which is in accordance with the EU law, is to separate the marijuana market and markets of other, more dangerous substances. The point is that the consumers of marihuana, which can be purchased without legal consequences, don’t have an opportunity to buy cocaine, amphetamine, or heroin from the same seller.

The Ministry of Health, however, decided to go in an opposite direction – well known for bringing effects contrary to the intended ones. But the government will be able to boast that it does something to combat legal highs and to show that it actually abides by the EU law.

Translated by Marysia Ciupka


Jan Smoleński
Currently a PhD candidate at the Politics Department of the New School for Social Research in New York. Graduate of the University of Warsaw (philosophy) and Central European University in Budapest (political science). Recipient of the Fulbright scholarship. His research interests include democratic theory, constitutionalism, federalism, and borders and bordering. In 2008-2011 he worked as a journalist for Krytyka Polityczna website. His articles and interviews were published in Gazeta Wyborcza, Rzeczpospolita, Krytyka Polityczna, Public Seminar, Green Europe Journal, and Critical Legal Thinking. He is the author of Odczarowanie. Z artystami o narkotykach rozmawia Jan Smoleński.