European Convention on Human Rights Case Law as a Source of Administrative and Criminal Law in Cases Concerning the Application of Measures by Law Enforcement Agencies in the Area of Drug Trafficking
Author(s): Oleksiy Tytarenko*, Iryna Pidpala, Anton Oliinyk, Roman Opatsky, Olena Dragan
Abstract
Aim: Drug enforcement in Ukraine consists of a chain of small coercive decisions-a street stop, an administrative protocol over a few grams, a test purchase arranged online-and each link of that chain is reviewable not only under domestic statutes but also under the standards developed in Strasbourg. Since 2006, Ukrainian courts have been bound by law to treat that jurisprudence as a source of law. This paper asks what the duty means in practice in a field where an administrative offence easily turns into a crime and where covert techniques are routine.
Methods: We read the convention, twenty Strasbourg judgments and two communicated Ukrainian applications concerning narcotics policing, the relevant domestic codes and statutes, and cassation rulings on incitement and double prosecution. Administrative narcotics offences were checked against the Engel test, and official figures for 2024-2025 were summarised.
Results: Five clusters of the court’s reasoning prove decisive in drug cases: (i) the autonomous reading of the term “criminal charge”; (ii) ne bis in idem; (iii) entrapment; (iv) the examination of hidden witnesses and informants; and (v) bodily integrity and privacy in searches and surveillance. Article 44 of the code of Ukraine on administrative offences allows up to fifteen days’ arrest, which is enough to place every case under it within the criminal limb of Article 6. Domestic courts cope well with the substantive part of the entrapment test; its procedural part and the duplication of administrative and criminal proceedings over one seizure remain weak points.
Conclusion: In this area, the court’s case law operates as a binding interpretive source and fills lacunae in both branches of law. A three-tier model of its reception is proposed, together with amendments requiring written reasons before each test purchase, suspension of administrative proceedings while a criminal case on the same facts is pending, and safeguards against abusive body searches.