Principles of Public Law and State Control over Circulation of Narcotic Drugs, Psychotropic Substances and Precursors: Problems of Legal Regulation in Ukraine

Received: 01-Apr-2024, Manuscript No. JDAR-24-139429 ; Editor assigned: 03-Apr-2024, Pre QC No. JDAR-24-139429 (PQ); Reviewed: 17-Apr-2024, QC No. JDAR-24-139429; Revised: 22-Apr-2024, Manuscript No. JDAR-24-139429 (R); Published: 29-Apr-2024, DOI: 10.4303/JDAR/236295

Introduction

The emergency situation created as a result of armed aggression on the part of Russia has a negative impact on the process of countering the illegal circulation of narcotic drugs, psychotropic substances and precursors: The order of drug control is violated, a large amount of drugs enters the temporarily occupied territory, children are increasingly involved in the process of illegal trafficking, the lack of medicine leads to the illegal use of narcotic drugs by the servicemen of the Armed Forces of Ukraine (AFU), stashes are “spread” from the occupied territories to the recently liberated territories, Internet networks and other information channels are used.

In Ukraine, in recent years, there has been an increasing trend in the number of people who seek treatment due to the use of narcotic drugs. About 71.5% of all treated persons in the dispensary group in 2021 received treatment due to the use of opioids, 20.1%-due to the use of several narcotics; 5.5%-due to the use of cannabinoids; 0.5%-due to the use of cocaine. The vast majority these people are presented by urban residents and young people aged 15 to 35 [1].

The lifetime prevalence of any drug use among Ukrainian students aged 15-17 is not higher than the European average. Thus, about 85.7% of respondents drank alcoholic beverages, about 51% smoked cigarettes, and 8.7% used cannabinoids [1]. Measures to prevent and reduce the level of drug use are carried out by both state institutions and non-governmental organizations. Such measures are aimed at popularizing a healthy lifestyle, by means of conducting various educational activities, distributing personal protection equipment among the population, including among its vulnerable groups.

In 2023, in Ukraine, 7,344 cases of administrative offenses related to illegal production, acquisition, storage, transportation, forwarding of narcotic drugs or psychotropic substances without the purpose of sale in small quantities were pending in Ukraine (Article 44 of the Code of Ukraine on Administrative Offenses (CUAO)), 6,063 of these cases were considered and appropriate decisions were made.

In connection with the spread of the coronavirus disease and the introduction of martial law in Ukraine by the Decree of the President of Ukraine dated 24 February, 2022, and in connection with active hostilities in some regions of Ukraine, preventive measures to combat drug addiction were not carried out in full [2].

When analyzing issues of combating the illegal circulation of narcotic drugs, psychotropic substances and precursors, it is important to clarify principles of such combating. Despite its relevance, this issue has not received proper theoretical understanding in legal literature, although some of its aspects within the broader concept have been studied by scientists.

Counteraction to trafficking of narcotic drugs, psychotropic substances and precursors is built according to certain rules and principles. The principles are guiding, fundamental principles that determine the rules of behavior of the subjects of counteraction to the analyzed phenomenon. Domestic scientists devoted their work to the study of the principles of preventing and countering illegal circulation of narcotic drugs, psychotropic substances and precursors. Among them there are such scientists as: A. М. Voloshuk (2012), Y.O. Legeza (2019), K. O. Pristina (2021), O. М. Shevchuk (2016), Kh. P. Yarmaki [1-3]. However, despite the growing intensity of scientific research devoted to the issues of this range of problems, many issues are still debatable.

The principles are revealed in the system of factors that determine development of this or that phenomenon. They are based on general ideas, methods and forms of public administration in the sphere of administrative and political activity, and they are one of its main factors of this administration. However, prevention of illegal circulation of narcotic drugs, psychotropic substances and precursors has its own characteristics, which depend primarily on the nature of state tasks and functions regarding ensuring public safety, as well as regarding the system of competent bodies, and the content of their activities. It is the above that determines the expediency of researching this issue as a separate institution of law.

Methods

In order to determine the methodological support of studying theoretical and practical basics regarding principles of public law and state control over circulation of narcotic drugs, psychotropic substances and precursors, the following methods of scientific knowledge are used in the article: Abstract-logical method, methods of analysis, synthesis, historical, comparison, induction, deduction, generalization, modelling regarding the principles of public law and state control over circulation of narcotic drugs, psychotropic substances and precursors.

The method of deduction made it possible to formulate directions for improving the principles of public law and state control over the circulation of narcotic drugs, psychotropic substances and precursors. With the help of the inductive method, practical problems regarding implementation of the principles of public law and state control over circulation of narcotic drugs, psychotropic substances and precursors were established. When conducting the research, general scientific and special methods of scientific knowledge were used. Thus, concepts, signs and types of principles of public law and state control over the circulation of narcotic drugs, psychotropic substances and precursors were investigated with the help of the dialectical method of scientific knowledge.

The historical-legal method was used for studying the genesis of the principles of public law and state control over circulation of narcotic drugs, psychotropic substances and precursors. The formal-logical method contributed to the formulation of definitions and classifications of legal categories in the researched sphere. With the help of the logical-legal method, practical recommendations on the application of the principles of public law and state control over circulation of narcotic drugs, psychotropic substances and precursors have been developed. The method of analysis and generalization made it possible to consider state control over circulation of narcotic drugs, psychotropic substances and precursors. The comparative legal method was used in the comparison of domestic and foreign legislation in implementation of the principles of public law and state control over circulation of narcotic drugs, psychotropic substances and precursors.

The research is based on the work of foreign and Ukrainian researchers on methodological approaches of understanding principles of law in the contexts of modern globalization transformations.

The essence of methodological approaches of understanding principles of law in the context of modern globalization transformations was determined by the use of the gnoseological method; with the help of the logicsemantics method the conceptual apparatus was deepened, and the essence of the concepts of principles of law in the context of modern globalization transformations was determined. By means of using the system-structural method investigated are components of methodological approaches to understanding of principles of law in the context of modern globalization transformations. The structural-logical method was used to define the basic directions for optimization of methodological approaches to understanding of principles of law in the context of modern globalization transformations.

In a broader context, depending on the level of public relations governed by law, principles of law are also viewed by O. Skakun. In the system of principles, she defines the following types: Universal human (international, civil) principles, regional-continental principles and national (domestic) principles.

The latter, in their turn, are divided into general legal (general, basic) principles, inter-branch principles, sectoral principles, subsectoral principles and institutional principles [4]. According to O. Skakun universal human (universal civilizational) principles of law include principles that are valid within the international legal order and determined by the achieved level of mankind development. In her opinion, these are principles of humanism, legal equality, freedom, democracy, justice, legality [5] (Figure 1).

Figure 1: Scheme 1: Classification of principles of law according to their scope

Universal (universal human) principles of law, i.e. fundamental, basic legal principles, formulated in the process of centuries-long history of progressive development of law, inherent in all legal systems.

Civilizational principles of law that characterize certain legal cultures and traditions embodied in their respective civilizations.

Right-family principles of law, i.e. the principles inherent in separate legal families (even within the limits of one civilization);

National principles of law, i.e. principles formulated and operated within a certain national legal system, reflecting its peculiarities.

Regional-continental principles of law operate within national legal systems that have created interstate associations on the continents of the world (for example, the principles laid down in the Treaty establishing the European Economic Community). A. Skakun believes that these principles usually coincide with universal human principles [6].

Other domestic jurists are also inclined to recognize the universal nature of certain principles of law, their civilizational and right-family features. In particular, in the system of general principles of law S. Pohrebniak determines a group of fundamental principles which are “laid in the basis of law and form its foundation” [7].

They are not just a concentrated expression of the most important essential features and values characteristic of a certain society, but they are “often a consolidation of those higher principles and values that form universal dimension of the society” [8].

A relatively autonomous system of principles of law is formed by principles of international law, among which are also defined as general principles of international law (according to the formula presented in the Article 38 the Statute of the International Court of Justice of the United Nations (hereinafter the UN)-“General principles of law recognized by civilized Nations”), the sectoral principles and principles of the institutions of international law. Although there are many of these principles that extend their effect to national legal systems, it is not correct to fully identify general principles of law with generally accepted principles of international law, as is sometimes the case in the literature. Elements of principles of law in public legal relations are proposed (Figure 2).

Figure 2: Scheme 2: Elements of principles of law in public legal relations

Essential legal features of legal principles may include:

1. Objectivity in legal norms. The given sign emphasizes that a principle of law necessarily has a legal nature, that is, the corresponding provision, requirement, principle must be either directly enshrined in the acts of the current legislation textually, or the corresponding requirement or principle must undoubtedly (and not allowing for another interpretation) follow from content of the current legal regulation, with the help of systematic interpretation of its norms;

2. Official certainty. This feature draws attention to cases of lack of textual confirmation of the principle of law. In such cases, it is obvious that in order to acquire the qualities of a principle of law, the relevant provision or requirement must be of an official nature, determined by a single practice of legal interpretation and law enforcement;

3. It is a requirement, a principle, in certain cases it is a concept. Determining the external expression of a principle of law, we come to understand that most often a principle is understood as a legal requirement (for example, legality, equality) or a foundation (for example, political, economic and ideological diversity). However, quite often a principle may outwardly take the form of a certain concept that cannot be clearly included in a requirement or foundation, such as, for example, the principle of good governance. Such a principle is a certain set of requirements that, at a certain stage of social development (as a result of their actual unique combination, as well as a result of the necessary theoretical justification) formed an indivisible structure-a single principle. Principlesconcepts, in our opinion, are more complex and derived from principles-requirements, principles-foundations; they are constructed by learned theoreticians and usually operate within more special branch legal relations;

4. They reflect the regularities of social development, embody the main requirements of such development, accordingly adjusting the content of legal norms;

5. They are real regulators of social relations. Such a feature can be further expanded in several directions. These directions include:

a) When penetrating the legal consciousness of participants of legal relations, principles of law constitute the main motivational levers, guidelines for a certain legal behavior of the relevant subjects. Subjects of legal relations do not remember direct, clear norms from various legislative acts-they are aware of the basic principles of legal regulation, which they are guided by;

b) Principles of law serve as an effective tool in the practice of law enforcement in cases where there are certain legal conflicts (controversies) or gaps. It is thanks to the general and sectoral principles of law that it becomes possible to overcome such gaps and conflicts, ensure a proper and qualitative understanding of the essence and spirit of law, resolution of legal disputes, as well as adoption of individual legal acts;

6. They direct the procedure of law-making. Principles of law are programmatic in their nature. The most generalized legal requirements reflecting the essence and content of the law, also serve as a certain reference point for improvement and development of the current legal system, for filling its gaps, and overcoming conflicts [9].

Results and Discussion

Countering illegal circulation of narcotic drugs, psychotropic substances and precursors is one of the priority areas of activity of state authorities, law enforcement agencies, and public organizations. During the conduct of military operations on the territory of Ukraine, there is a situation of a constant increase in the scale and pace of drug addiction of the population, which leads to an increase in the number of drug-related offenses, emergence of drug syndicates, an organized system of dealer networks, the use of telecommunication networks for distribution of narcotic drugs [2].

Before proceeding to the study of the principles of countering illegal circulation of narcotic drugs, psychotropic substances and precursors, it is advisable to turn to the analysis of the concept of “principles”, which will contribute to their in-depth understanding in the specified sphere of research, since they are an organic part of the above categories.

Although many scientists in various fields of science have paid attention to the issues of studying the nature and essence of principles, let’s dwell on some aspects of the characteristics of this definition.

In legal encyclopedic sources, principles (from Fr. “рrіnсіре”, Lat. “principium”-beginning, base) are defined as:

a) “basic principles, original ideas, which are characterized by universality, general significance, higher imperativeness and reflect essential provisions of theory, doctrine, science, system of domestic and international law, political, state or public organization;

b) inner conviction of a person, which determines attitude of this person to reality, social ideas...” [10].

O.F. Skakun defines principles as a set of basic requirements for a certain process (phenomenon, subject), which reflect their essence [11].

Principles are characterized as a set of general ideas that determine the essence of a certain phenomenon and its purpose in society. They reflect regularities of this or that phenomenon and represent the most general norms that apply to all subjects; this is the reasoning regarding the principles of N.P. Svyridyuk, (2017) [12].

According to A.M. Kolodiy principles are the starting ideas of existence, which reflect the most important foundations and regularities and which are the essence of and form the features of one or another phenomenon, are distinguished by universality, higher imperativeness and general significance [13].

Modern domestic experts in the field of law emphasize that principles are basic and the most general provisions established by law as basic foundation, i.e. principles are guiding normative requirements, general norms [14].

O.P. Riabchenko (2013) considers principles in the theory of management as a regularity, relationship of a system of ontological elements characterized by objectivity and universality [15].

So, A.M. Voloshuk (2012) divides the principles of administrative and legal regulation of countering illegal circulation of narcotic drugs, psychotropic substances and precursors into 2 types: General ones and special ones [1].

When analyzing the principles of the activities of drug control bodies, V.M. Yudin divided them into general ones and special ones [3]. We believe that such a division should also be applied in this research regarding the principles of countering illegal circulation of narcotic drugs, psychotropic substances and precursors.

So, in his monographic research A.M. Voloshuk (2012) includes the following principles to the list of general principles: Legality, objectivity, openness, publicity, humanism, rule of law, planning, comprehensiveness, participation of citizens and their associations in countering illegal drug trafficking; to special principles; to the list of special principles the scientist includes the following: Offensiveness, secrecy, a combination of overt and covert measures of countering illegal drug trafficking and the involvement of confidants [1].

The Decree of the Cabinet of Ministers of Ukraine dated 28 July, 2013, No. 735-r approved the “State Drug Policy Strategy for the period up to 2020”, which emphasizes the following: Drug policy is based on the following basic principles:

1. legality;

2. observance of human rights;

3. openness and coordination of drug policy;

4. availability of drugs for medical and scientific purposes;

5. effectiveness and systematic combating drug trafficking and smuggling;

6. a scientifically based approach to drug addiction prevention and treatment;

7. public participation in the development and implementation of drug policy;

8. proper fulfillment of international obligations [16,17].

Legality is a requirement of strict and unwavering observance, execution and application of the law; it performs quite diverse functions: It is the method and principle of activity of all legal entities; acts as a general constitutional duty to obey laws (part. 2 of Art. 6 of the Constitution of Ukraine); in practice, it is aimed at ensuring the realization of the values of law and the experience of legal activity; it is designed to ensure legitimacy of legal requirements in the sphere of law-making and law enforcement [18].

The principle of the rule of law, as one of the constitutional principles, determines the content and direction of activities performed by state bodies, in particular the subjects of countering illegal circulation of narcotic drugs, psychotropic substances and precursors, including the bodies of the National Police of Ukraine. Significance of the principle of the rule of law consists in the fact that the subjects of countering recognize the law as the highest value, which ensures rights and freedoms of individuals and the public interest of society [19].

The principle of transparency consists in the openness of information regarding implementation of complex programs and relevant measures regarding countering spread of drug addiction and crime related to the sphere of illegal circulation of narcotic drugs, psychotropic substances and precursors, conducting preventive work with the population in order to prevent the emergence of drug addiction [1].

Respect for human rights-this principle is based on the “people-centered” ideology, according to which the state should take care of the interests of the community, i.e. The state should act for the “good of human”, by means of comprehensively ensuring the priority of his/her rights, freedoms and interests in the sphere of activity of public administration bodies, including subjects of countering illegal circulation of narcotic drugs, psychotropic substances and precursors [20].

Implementation of the principle of planned counteraction against illegal circulation of narcotic drugs, psychotropic substances and precursors ensures clear and consistent work on various components of such counteraction. For example, State Service of Ukraine on Drugs Control (SSUDC) annually drew up plans for inspections of licensees in compliance with the Licensing conditions for carrying out economic activities related to cultivation of plants included in table I of the List, with development, production, manufacture, storage, transportation, acquisition, sale (sale), import to the territory of Ukraine, removal from its territory, use and destruction of narcotic drugs, psychotropic substances and precursors included in this List [21].

The principle of scientificity is manifested in the content of the various aspects of administrative activity in the sphere of countering illegal circulation of narcotic drugs, psychotropic substances and precursors and this principle consists in the desire of the subjects of countering to take the most effective measures based on the acquired logical awareness of counteraction. New tasks, caused by the martial law regime, the current level of development of society and set by the government, can no longer be solved by old methods, without a fundamental improvement of all organizational work [22].

The principle of innovation and openness to changes. The need to implement the Association Agreement between Ukraine, on the one hand, and the European Union, on the other, leaves no other options for the National Police of Ukraine but to carry out administrative activities through transformation (borrowing) of scientific research and public management developments into the practice of public administration by means of using new approaches to the provision of administrative services and implementation of executive and administrative activities with the aim of adapting them to EU standards as well as with the aim of further development. Ukrainian public administration should work more openly, actively exchange information with EU member states, instill high European values and apply formal procedures of public management and technical support of public administration [19].

Interaction of subjects of countering illegal circulation of narcotic drugs, psychotropic substances and precursors, although classified by us as special principles, is of great importance for countermeasures. Optimal use of the capabilities of those interacting in the sphere of countering illegal circulation of narcotic drugs, psychotropic substances, and precursors presupposes, first of all, the optimal number of participants in the interaction, which will allow to successfully cope with the task (a kind of controllability norm during interaction). A targeted cooperation in the field of countering illegal circulation of narcotic drugs, psychotropic substances and precursors focuses efforts of its participants on solving important problems, by means of combining their actions.

The principle of combination of public (open) and private (secret) measures is manifested in the practical activities performed by subjects of combating illegal circulation of narcotic drugs, psychotropic substances and precursors. Subjects of countering can take public measures to prevent, for example, adoption and development of normative acts in the analyzed field, as well as measures regarding conducting educational and informative conversations, preventive measures, etc. The specified subjects can organize and conduct secret events: Operational purchases, blocking of illegal supplies, implementation of the agent apparatus in the criminal environment, etc. A combination of open and secret measures can be the most effective. Thus, after receiving official information about an expected delivery of narcotic drugs to the specified address, the subject of countering can carry out secret surveillance for verification, with the aim of recording illegal acts and arresting the offender publicly and officially. Choice of forms of combining open and secret methods depends on specific circumstances and is determined by the subject of countering himself/herself.

The principle of promptness means that subjects of countering illegal circulation of narcotic drugs, psychotropic substances and precursors must quickly take the necessary measures so as not to disrupt functioning of the counteraction object [3].

The principle of competence is that the subjects of countering must possess a sufficient level of a complex of professional knowledge, skills, properties and qualities and are capable of carrying out optimal and effective public administration in the field of countermeasures against illegal circulation of narcotic drugs, psychotropic substances and precursors [23].

It is worth noting that the given list of principles of countering illegal circulation of narcotic drugs, psychotropic substances and precursors is not complete and cannot be so. Currently, formation of a system of principles is going on; importance of these principles is that they are a guideline in rule-making activity, and the goal and task of countering the illegal circulation of narcotic drugs, psychotropic substances and precursors should be foreseen and established on their basis [24].

Conclusion

Therefore, the principles of countering illegal circulation of narcotic drugs, psychotropic substances, and precursors should be understood as a logically ordered system of ideas, provisions that, with the help of the selection criteria contained in them, adequately reflect the objective laws of combating and that are to a certain extent enshrined in regulatory acts.

As for the system of principles of countering illegal circulation of narcotic drugs, psychotropic substances and precursors, these principles include:

a) General principles of the legal regime-these are the main principles that determine the most essential features of countering illegal circulation of narcotic drugs, psychotropic substances and precursors in general, their content and features, apply to all areas of law, regardless of the nature and specifics of the social relations regulated by them; some of the general principles (legality, respect for human rights) are enshrined in the Constitution of Ukraine. However, for effective countermeasures against illegal circulation of narcotic drugs, psychotropic substances and precursors, an important role is played by its special principles, such basic provisions that directly affect the optimality of each of the types

b) Special principles of countering illegal circulation of narcotic drugs, psychotropic substances and precursors (intersectoral ones, sectoral ones and institutional ones) complement the general ones.

Principles of countering illegal circulation of narcotic drugs, psychotropic substances and precursors can be divided into:

a) general principles:

1. legality;

2. rule of law;

3. publicity (transparency);

4. observance of human rights;

5. planning;

6. scientism;

7. innovativeness and openness to changes and

b) special principles:

1. interaction of subjects of countering illegal circulation of narcotic drugs, psychotropic substances and precursors;

2. offensiveness;

3. combination of open and secret activities;

4. promptness;

5. competence.

Acknowledgement

None.

Conflict Of Interest

Authors have no conflict of interest to declare.

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