The 2011 amendment of the Polish drug law was a good first step, but a lot more has to be done to help people with addictions and strengthen the effectiveness of the country's harm reduction efforts.
The fact that a person possesses illicit drugs should not mean they forfeit their human rights. Yet in most countries around the world, people with addictions face stigmatisation and abuse of their rights. Without being fully aware of what these rights are – and even less how to invoke them in their own defense — both drug-dependent people and casual users are liable to suffer punishments out of proportion with the harm that their “crime” (possession of drugs) has caused to society. Furthermore, they are frequently unable to access the legal assistance which might help to reduce their sentence.
Poland’s harsh drug law is largely responsible for this situation, by criminalising the possession of any amount of an illicit substance. As a consequence, mainly socially vulnerable people are affected – those who are least well-equipped to protect themselves in court or against law enforcement authorities.
In response to this situation, the JUMP 93 Association and the Polish Drug Policy Network instituted the 'Ombudsman for Addicts' program, which began work in June 2009, led jointly by the authors of this report: Agnieszka Sieniawska, a lawyer, and Jacek Charmast, founder of the program. Their 2010-2011 report highlights the human rights situation in Poland pertaining to drug use and Polish drug treatment system, organised into five sections.
Poland’s drug law is one of the most draconian in the European Union. Anyone found with drugs on their person may face up to three years' imprisonment, even if it is a first time offence. When alternative sanctions are imposed – such as heavy fines or restriction of liberty – the offender still receives a criminal record which can have serious consequences for the individual’s ability to secure employment in the future.
In 2000, possession of any amount of drugs, for any purpose, was criminalised throughout the country, by Article 62 of the Act on Counteracting Drug Addiction (ACDA), which stipulates that the possession of any quantity of drugs, regardless of the amount or type of the substance, is punishable by up to 3 years' imprisonment.
Under ACDA, police officials are mandated to carry out “stop and search” procedures, based on arbitrary indicators of drug possession. Under the ACDA regime, levels of drug use have continued unchanged; the number of arrests, however, has sharply increased. In 2009, for example, almost 30,000 people were arrested for possessing a small quantity of illicit drugs. Drug possession cases have increased by 1500 percent since the law was introduced. Polish prisons are overcrowded, and at the same, far from being drug free. Approximately 80 million PLN (around 40 million USD) is spent yearly from the state budget in order to enforce Article 62.
During the first year of the Ombudsman Program, around 100 cases were undertaken. Most of them (60 percent) relate to the legal problems of patients enrolled in substitution maintenance programs. These cases often involve conflict with civil and criminal law. Another 40 cases concern the enforcement of Article 62. The principal conclusion which may be drawn from the Ombudsman's annual activities is that the current drug law enables the police, prosecutors and judges to impose inappropriate punishments.
The legal consequences of drug possession are dictated by the amount and type of drug, the offender's background, and the circumstances of the arrest. In all cases (with two exceptions involving MDMA and amphetamine), clients of the Ombudsman program were caught in possession of marijuana in quantities small enough to be considered 'consumer doses' – from 0.2 to 5 grams for personal use. The circumstances of detention by the police were all very similar, as suspicion of “criminal” activity follows a formulaic pattern. In all cases, drug possession in small quantities was detected during routine police checks at dance clubs, in parks or in a parked car at the side of the road, usually in the evenings. Those detained were in almost all cases (with two exceptions) men aged 19 to 27. It should be noted that police use this law as preventive punishment, since those detained are often suspected of being perpetrators, or potential perpetrators, of other crimes.
On December 9, 2011, the new Law on Counteracting Drug Addiction came into force, formally giving prosecutors the option to drop legal proceedings if the level of social harm of the criminal act is very low. This means that first timers, occasional drug users, as well as problematic users will not necessarily be sentenced to imprisonment. It might have been hoped that prosecutors would make the maximum use of this amendment, and that further amendments to the law would be made in the near future.
In practice, however, in all the cases covered by the report, the prosecutors invited those accused of drug possession to voluntarily accept punishment, rather than request the discontinuance of criminal proceedings. If prosecutors are inclined to be lenient, then the resulting sentence might entail 6 months' imprisonment and two years' probation – a punishment still out of all proportion with the level of harm caused to society by drug possession. The relative severity of penalties proposed by prosecutors is striking, especially when cases involve small quantities of drugs for personal use. Prosecutors do not tend to take the available approach of classifying the case as one of lesser importance and waiving criminal proceedings. In our view, this constitutes bad practice, as prosecutors instead of proposing a voluntary submission to the penalty shall discontinue such criminal proceedings, especially since the law allows for such a solution. In all cases, however, prosecutors sent the indictment to the court. Once the case reaches court, judges frequently decide to discontinue legal proceedings.
Outdated care system
Drug therapy in Poland remains frozen in the form in which it was adopted 30 years ago. The authorities do not appear to show any interest in upgrading or even discussing the shortcomings of their programs. Oversupply of some services in this sector translates into severe deficits in others. However, there are some inspiring examples of a more rational allocation of resources in certain parts of the country. The report of the Ombudsman for Addicts identifies Mazovia as an exceptional region of Poland, where the allocation of resources dedicated to treatment is appropriate to needs and demonstrates real sustainability.
The defective nature of Polish healthcare is mainly due to an inadequate understanding of social needs, on the part of regional and municipal governments; in the context of drug policy, this often results in a lack of conformity with the principles of the relevant national treatment strategies (National Health Program, National Program for Drug Prevention, National Programme for Mental Health). These strategies seek to distribute funds across many different kinds of treatment, with an emphasis on expanding substitution treatment. It is important to remember that the misallocation of funds at the local level is a product of undue influence from large non-governmental organisations, which want to continue their monopoly on long-term treatment in closed treatment centers, and to block the use of pharmacological methods of treating addictions.
In Poland, there are regions which demonstrate how much can be done with relatively little money (Małopolskie, Lubelskie), but there are also examples of how little may be done if a great deal is spent (Pomorze). In Pomorze (the Pomeranian region), 42 thousand Polish zlotys were spent on 10 thousand people, compared to the national average of 29 thousand zlotys for 10 thousand people. Out of the latter expenditure, only 13 percent was devoted to outpatient treatment, while the remainder (87%) went to long-term treatment facilities.
The Polish system of addiction treatment needs to be subject to scrutiny and reform. Local governments and the National Health Fund—the bodies responsible for the creation and enforcement of local drug policy—should respect and implement the priorities identified in national strategies for solving drug problems. Furthermore, we recommend that the National Law on Counteracting Drug Addiction be amended to decriminalise small-scale drug use, which would foster access to useful substitution therapy for drug dependent people. The key to success in the field of drug policy lies in making available a broad range of treatment methods, and 'humanising' drugs legislation, based on principles of harm reduction and firmly grounded in respect for human rights.
Read the full version of the report in Polish here.
Agnieszka Sienia/Warsaw
