Methodological Foundations for Researching Human Rights Protection Guarantees in the Context of Combating Illicit Drug Trafficking under Martial Law: Criminal Procedural and Administrative Procedural Aspects, and Mechanisms for Compensation for Damages

Received: 12-Jun-2026, Manuscript No. JDAR-26-194813; Editor assigned: 15-Jun-2026, Pre QC No. JDAR-26-194813 (PQ); Reviewed: 29-Jun-2026, QC No. JDAR-26-194813; Revised: 06-Jul-2026, Manuscript No. JDAR-26-194813 (R); Published: 13-Jul-2026, DOI: 10.4303/JDAR/236519

Introduction

Since 24 February 2022, when martial law was declared in Ukraine by presidential decree No. 64/2022 [1], the setting in which the state fights the illegal trade in narcotic drugs, psychotropic substances, their analogues and precursors has changed fundamentally. At the same time, traffickers shifted towards new distribution channels, above all messaging applications and anonymous online marketplaces. Lawenforcement bodies were granted broader powers, and the rules governing procedural deadlines and procedures were substantially revised [2,3].

Wartime thus places two constitutional values in opposition. The state must protect public health and public order, and this duty is used to justify tighter control; yet the Basic Law also fixes clear boundaries for what may be curtailed during hostilities. Under part two of Article 64, the rights enshrined, among others, in Articles 29, 55, 56, 59 and 62 are immune from restriction even under martial law [4]. These provisions cover liberty and security of person, access to a court, compensation for damage caused by the authorities, the right to professional legal aid and the presumption of innocence. Procedural guarantees therefore survive the introduction of martial law; what changes is the environment in which they must be applied.

The difficulty addressed here is the fragmented way in which scholars approach the protection of individuals in anti-drug enforcement. Criminal procedure, administrative procedure and compensation law each tend to be analysed on their own terms, with no common analytical frame. As a result, the borderline zones receive little scrutiny: An administrative route is used where a criminal one is required, an unlawful step taken during a check or an arrest escapes any legal evaluation, or a person whose case has been discontinued is left without a workable path to redress. Closing these gaps is relevant not only to doctrine but also to the daily practice of investigators, prosecutors, judges and defence lawyers.

Scholars have also turned their attention to the notification by which Ukraine, relying on Article 15 of the European Convention on Human Rights (ECHR), suspended the application of some of its treaty commitments [5,6]. Since 2022, writing on criminal justice in wartime has grown rapidly. Authors mostly discuss the successive changes to Article 615 of the Code of Criminal Procedure of Ukraine (the CPC), the reallocation of functions of the investigating judge, the counting of investigation deadlines and the admissibility of evidence obtained in emergency circumstances [2]. Entrapment in drug cases has attracted detailed attention, chiefly on the basis of Strasbourg case law (the European Court of Human Rights, hereinafter the ECtHR) [7-9], although these works rarely consider the specific features of a war. Compensation under Law No. 266/94-VR [10], in turn, is typically treated as a private law topic, separated from the procedural guarantees it is meant to complete.

No comprehensive methodology has yet been offered that would allow the guarantees of criminal procedure, administrative procedure and compensation law to be analysed together, as mutually dependent parts of a single mechanism, specifically with regard to anti-drug enforcement in wartime. This is the gap the present paper seeks to fill.

Methods

The research combines general and special legal methods selected to fit a human-centred, systemic, interdisciplinary and instrumental perspective. Hermeneutics was applied to evaluative categories, above all the statutory reference to the “objective impossibility” of a procedural step [2]. The comparative method made it possible to test Ukrainian solutions against Strasbourg standards and against the experience of other states. To show how different models perform, the author translated and used the latest official figures for 2025-2026 released in Spanish, Italian and German. Case-law analysis focused on ECtHR judgments on entrapment and on redress, while modelling was used to build a scheme of the safeguard system and to outline how it might be strengthened.

Results and Discussion

Foreign experience in the light of 2025-2026 data

The foreign models examined in this study show how emergency regimes directed against drug crime and organised crime work in practice. The most recent official figures are given below in the author’s translation from Spanish, Italian and German.

In Ecuador, which has relied on emergency measures against drug-trafficking groups since January 2024, the National Police reported that 222.037 tonnes of drugs were seized in 2025, compared with the record 294.61 tonnes in 2024, i.e. roughly 25% less; over the year 9,199 antidrug operations were conducted and 11,244 persons were detained [11]. In El Salvador, according to the Security Cabinet, 90,844 persons were detained between 27 March 2022, when the régimen de excepción was introduced, and 31 December 2025, including 6,584 in 2025 alone [12]. Non-governmental organisations have documented at least 415 deaths in custody during the first three years of the regime [13], which illustrates the risk of an emergency regime turning into a permanent instrument of mass detention.

Colombia, which pursues a military-police model without a formal state of emergency, seized 820 tonnes of cocaine in 2025 (data as of November), 7% more than in the previous year, according to the Ministry of National Defence [14]. In Mexico, between 1 October 2024 and 6 October 2025, the authorities dismantled 1,564 clandestine laboratories, seized 283.5 tonnes of drugs, including more than three million fentanyl pills, and detained 34,690 persons for high-impact offences [15].

Countries in Europe that did not introduce emergency regimes place the accent elsewhere. Italian anti-drug authorities report that in 2024 they seized slightly over 58 tonnes of narcotics, about a third less than a year earlier; of the 27,989 people referred to prosecutors, 10,841 (38.73%) were non-nationals and 1,202 were under eighteen [16,17]. Overdose mortality in Italy rose to 249 cases in 2025, an increase of 7.8%, and cocaine for the first time surpassed heroin as the principal substance involved [18]. German federal data for the same year show 2,150 drug deaths, with 528 victims younger than thirty, 769 deaths linked to cocaine or crack, and multiple-substance use present in 81.5% of cases [19].

Read together, the data indicate that quantitative markers, whether tonnes confiscated or people arrested, say little on their own about whether an emergency regime works. Ecuador’s seizures dropped by roughly one quarter after the peak year in spite of extraordinary powers, and El Salvador’s mass arrests have raised grave human rights concerns. Italy and Germany, by contrast, are increasingly framing the problem as one of public health because drug deaths keep rising. For Ukraine, this comparison reinforces the human-centred approach and supports the caution, developed further below, against sacrificing procedural guarantees for the sake of statistical results.

Studying human rights guarantees in this field requires a layered methodology in which worldview approaches, cognitive principles and specific methods are consistent with one another. The model proposed in this paper consists of three such layers.

At the centre of the model stands the anthropocentric approach: The individual, with his or her rights and freedoms, serves as the measure by which any act of public authority is assessed. Its constitutional anchor is Article 3, which declares the human being, together with life, health, honour, dignity, inviolability and security, to be the highest social value in Ukraine [4].

Every restriction justified by reference to martial law has to respond to a concrete danger; the formal existence of the special regime is not enough. This mirrors Article 15 and once of the convention, under which a state may depart from its obligations only so far as the situation strictly demands [20]. The second principle is that of an effective remedy under Article 13 of the convention, which requires that a person alleging a breach of convention rights be able to seek relief before a domestic authority [20, Art. 13]; a safeguard that exists only in the text of a statute does not satisfy this requirement. The third is the ban on misusing emergency powers: Tools created for wartime security must not be turned to unrelated ends, such as artificially raising the number of recorded drug offences.

Dialectical analysis exposes the permanent tension between security needs and individual liberty and shows that this tension is what pushes the legislator to act. Doctrinal legal analysis was used to study Article 615 of the Code of Criminal Procedure of Ukraine (CPC) [2], the relevant rules of the Code of Ukraine on Administrative Offences (the CAO) [21], the Law on the legal regime of martial law [3] and law No. 266/94-VR [10]. Hermeneutics helped to give content to open-ended terms such as the “objective impossibility” of a procedural step. The comparative method allowed Ukrainian rules to be measured against Strasbourg standards and against the practice of countries that have applied emergency regimes. Finally, the historical method made it possible to follow how Article 615 of the CPC has changed through numerous amendments adopted since 2022.

This methodology shifts the analysis from describing separate provisions to evaluating whether the system of safeguards stays coherent under martial law. We take as the test of coherence the existence, for anyone whose rights have been infringed, of an unbroken chain of protection that runs from the procedural possibility of contesting an action to the actual payment of compensation.

The key statutory source of these changes is Chapter IX-1 of the CPC, and in particular Article 615, which sets out a distinct procedure for investigation and trial while martial law lasts [2]. Its rules can be grouped in two sets: Some take effect by the mere fact that martial law has been declared, while others require an additional precondition, typically that a given procedural action cannot objectively be performed in the ordinary way.

A special method of calculating pre-trial investigation time limits has also been introduced, including a thirty-month period before notification of suspicion in proceedings in which no one had been notified of suspicion on the day martial law was declared, as provided by the amendments made by Law of Ukraine No. 3341-IX of 23 August 2023 [22].

Drug offences under Articles 305-320 of the criminal code [23] are usually exposed through covert investigative actions, searches and inspections, which are the most intrusive forms of interference with private life. Any weakening of judicial oversight over them increases the danger of excessive use. Hence the exceptions in Article 615 of the CPC must be read restrictively: They may be invoked only when it has been shown, and reflected in a reasoned procedural decision, that the ordinary procedure truly cannot be followed, and never simply for practical convenience.

A test purchase, which the CPC treats as a form of control over the commission of a crime (Article 271), is still the main instrument for detecting drug sales [2], and part three of the same article forbids provoking a person into an offence. Strasbourg standards on this issue were shaped in Teixeira de Castro vs. Portugal [7], Ramanauskas vs. Lithuania [8] and Bannikova vs. Russia [9]. In Teixeira de Castro the Court ruled that evidence produced by police incitement cannot be used, whatever the public interest at stake [7, § 36]. In Ramanauskas the Grand Chamber explained that incitement occurs when officers go beyond a passive investigation and influence the person so that he or she commits an offence that would not otherwise have taken place [8, § 55]. Two lines of review follow. On the substance, the court asks whether the authorities stayed essentially passive, whether they had objective grounds for suspicion and whether the crime would have happened without them. On the procedure, the court must deal seriously with an entrapment complaint, and the burden of disproving incitement lies on the prosecution [9].

Ukrainian courts have incorporated these tests into domestic practice. In wartime, however, the danger of entrapment rises for several reasons: Internal supervision becomes weaker, personnel in units change frequently, there is pressure to show results, and contacts increasingly take place in messaging apps, where it is hard to tell passive from active involvement.

Accordingly, in drug cases a court may order pre-trial detention only after weighing, for the specific suspect, the risks set out in Article 177 of the CPC [2]; citing martial law in general terms is no substitute. Strasbourg has already found that Ukrainian detention orders lacking individual reasoning reflect a recurrent problem [24]. Drug-dependent suspects call for particular care: Keeping them in custody without opioid substitution therapy may breach Article 3 of the Convention [25], the absolute prohibition of torture and inhuman or degrading treatment, which allows no derogation even in time of war [20].

Methodologically, the right to a defence lawyer should be treated as continuous, starting from the very moment of actual arrest [26]. Where this right is not respected, statements and other evidence obtained from the person in the lawyer’s absence ought to be excluded under Article 87 of the CPC [2].

Administrative liability in the drug sphere is aimed primarily at less dangerous behaviour. It covers, in particular, producing, acquiring, keeping, transporting or sending small quantities of drugs without intent to sell and using them without medical prescription (Article 44 of the Code of Ukraine on Administrative Offences (CAO), as well as unlawfully growing opium poppy or cannabis (Article 106-2 of the CAO) [21]. Further rules are contained in the 1995 laws on narcotic drugs, psychotropic substances and precursors [27] and on countering their illicit trafficking and abuse [28].

The authorities’ security powers expanded markedly once martial law was declared. The martial law statute permits a curfew, stricter identity checks and the inspection of belongings, vehicles, baggage and freight [3]. Such measures often become the starting point of a drug case: A substance is discovered during a routine security check, and an investigation follows. This produces the core methodological problem, which we describe as a change of legal regime within a single episode. A check launched as an administrative security measure effectively turns into a hunt for criminal evidence; the individual loses the protections that criminal procedure attaches to searches, and the check itself never acquires the form prescribed by the CPC.

To address this, we propose a purpose-and-moment criterion: From the instant an officer has reasonable suspicion that a crime has been committed, all subsequent steps must follow the criminal procedure and nothing else.

Administrative detention requires particular attention. Article 263 of the CAO permits holding a person suspected of breaching the rules on the circulation of narcotic drugs and psychotropic substances for as long as three days, provided the prosecutor is informed in writing within a day [21,]. This is considerably longer than the standard term, and in wartime it may be abused as a hidden alternative to arrest under the CPC. Proper safeguards here include informing the person of his or her rights without delay as required by Article 268 of the CAO, access to counsel, a medical check and, where needed, treatment for addiction [21].

Court supervision of administrative measures runs along two lines. Matters under Article 44 of the CAO are decided by local general courts, and their rulings are appealed under Article 294 of the CAO [21]. Police conduct not connected with any particular case, for example an unjustified inspection or a detention after which no offence report is drawn up, can be contested in an administrative court on the basis of Article 19 of the code of administrative procedure [29]. A generalisation of court practice could usefully confirm that police measures taken before a report is drawn up or criminal proceedings are registered fall to the court that hears the related case, and, if no such case exists, to the administrative court.

Consistently with the human-centred perspective, administrative proceedings must also serve prevention and health protection. Since Law No. 3528-IX on cannabis for medical, industrial and research use came into force on 16 August 2024 [30], the line between legal and illegal handling of cannabis has become less clear. Before imposing any penalty, police officers and judges should therefore establish whether the person holds a medical prescription, rather than discovering this after the fact.

Redress mechanisms complete the chain of safeguards; without them procedural guarantees remain unfinished because the infringed right is never restored in practice. Article 56 of the Constitution entitles everyone to compensation from the state or local authorities for pecuniary and nonpecuniary damage caused by unlawful decisions, acts or omissions of public bodies and officials [4], and Article 64 lists this right among those that martial law cannot limit. Internationally, Article 5 § 5 of the Convention guarantees an enforceable right to compensation to anyone arrested or detained unlawfully [20], and Article 3 of Protocol No. 7 adds a similar guarantee for miscarriages of justice [20].

The special regime of redress derives from Law No. 266/94-VR of 1 December 1994 [10]. It applies where suspicion was notified unlawfully, a person was unlawfully detained, a search or seizure was unlawful, a conviction was wrongful, or certain administrative sanctions were imposed unlawfully. Entitlement depends on the grounds set out in Article 2 of the Law, most notably acquittal or termination of the case on rehabilitating grounds. Recoverable losses include lost income, property, paid fines and court costs, legal aid expenses and moral harm, with the latter set at no less than one minimum wage per month of investigation or trial [10].

The general civil liability regime rests on Articles 1173, 1174 and 1176 of the civil code [31]. It comes into play when officials cause harm through unlawful conduct in situations that the special Law does not cover. In anti-drug enforcement, this may include damage to property during an inspection, unauthorised recording of a person’s private life or excessive force during an arrest.

The convention mechanism consists in applying to the ECtHR after domestic remedies have been exhausted. Ukraine’s derogation from certain convention obligations under Article 15 does not deprive individuals of this avenue, since it is the ECtHR itself that decides whether specific measures were strictly required by the situation [5,6].

War has exposed several structural flaws in these mechanisms. The first is reliance on rehabilitation: The special Law ties compensation essentially to full exoneration [10]. Someone convicted of a lesser charge than the one first brought, or whose case collapsed because key evidence was excluded for entrapment, frequently receives no compensation for the unlawful procedural acts he or she endured. The second is the lack of any remedy for excessive length of proceedings. Extended investigation deadlines under martial law lengthen the period of uncertainty, yet Ukraine still has no domestic mechanism of redress for delay, although Strasbourg has long treated such a remedy as a requirement of Article 13 [32]. The third concerns the execution of judgments: Wartime budget pressure makes actual payment uncertain, and the ECtHR has already characterised non-enforcement of domestic decisions in Ukraine as a systemic problem [33,34].

Methodologically, there are good reasons to move away from compensation that depends on exoneration towards compensation that depends on the violation itself. In such a model, the entitlement arises once the breach of a particular right is established, whatever the final outcome of the criminal case. This corresponds to the reasoning of the ECtHR, which examines each complaint on its own merits and grants just satisfaction under Article 41 of the Convention regardless of how the domestic prosecution ended [20] (Table 1).

Table 1: Methodological framework for studying human rights safeguards in countering illicit drug trafficking under martial law.

The novelty of the research lies in joining the systemic and instrumental perspectives. The former allowed three branches of law to be treated as a single whole, and the latter supplied a yardstick for its coherence, namely an uninterrupted line of protection running from a challenge to an action through to actual compensation. Three original proposals follow from this: A restrictive reading of Article 615 of the CPC; a “purpose-and-moment” criterion to distinguish an administrative check from a criminal search; and replacing “compensation upon exoneration” with “compensation upon violation”.

The methodology has a limitation: It draws on publicly available aggregate figures and does not include the author’s own empirical research, such as questionnaires or a systematic review of court decisions. The conclusions are therefore mainly theoretical and normative, and testing them empirically on Ukrainian data remains a task for subsequent work.

Conclusion

Human rights protection in the fight against drug trafficking during martial law is best understood as one cross-sectoral system with three components: Criminal procedural, administrative procedural and compensatory. Its effectiveness is determined by whether a person can move without interruption from challenging an unlawful action to receiving redress for it.

The methodological basis of the research is the humancentred approach, combined with systemic, interdisciplinary and instrumental approaches. The proportionality test and the principle that restrictions must be temporary function at once as legal standards and as tools of scholarly analysis.

Foreign data for 2025-2026 show that emergency regimes against drug crime produce impressive volume indicators but do not guarantee a sustained reduction of the drug trade and may be accompanied by grave human rights violations, whereas in European states the emphasis is shifting towards preventing drug-related deaths. Ukraine should therefore measure the effectiveness of counter-drug policy under martial law not only by seizures and detentions but also by the observance of procedural guarantees.

The special rules of Article 615 of the CPC must be read narrowly and may be applied only where a procedural decision establishes that compliance with the ordinary procedure is objectively impossible. In test purchases, the ECtHR entrapment tests should be supplemented by an obligation to record who initiated the first contact and to retain the full electronic correspondence.

Existing redress mechanisms are still built around full rehabilitation of the individual. The paper argues for a model in which compensation follows from the violation itself, for a domestic remedy against excessively long proceedings, and for a simplified extrajudicial procedure that would guarantee a minimum payment for unlawful detention.

Further research could focus on an empirical study of how Article 615 of the CPC is applied in drug cases, on the impact of the legalisation of medical cannabis on lawenforcement practice, and on standards for protecting the rights of drug-dependent service members and internally displaced persons.

Acknowledgement

None.

Conflict of Interest

Authors have no conflict of interest to declare.

References

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Copyright: © 2026 Nataliia Shumska, et al. This is an open access article distributed under the terms of the Creative Commons Attribution License, which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited.