The problem of control systems for illicit trafficking of narcotic drugs and psychotropic substances

The expansion and deepening of the narcosis of society inevitably damages the national security of the Russian Federation ^[1]. On the basis of pdp. 11, paragraph 47 of the Decree of the President of the Russian Federation dated 02.07.2021 No. 400 "On the National Security Strategy of the Russian Federation", the achievement of the goals of ensuring state and public security is carried out through the implementation of state policy aimed at solving tasks that also include the prevention and suppression of crimes related to illicit trafficking in narcotic drugs and psychotropic substances. Over the past ten years, the number of drug users has increased by 22% and amounted to a record 275 million people (World Drug Report – 2021 [electronic resource]; URL: https://www.unodc.org/res/wdr2021/field/V2104297_russian.pdf (accessed 31.01.2022). Moreover, the statistics take into account only those drug users for whom the appropriate administrative supervision is established, but their real number may be much larger. The phenomenon of "designer drugs" creates additional complexity in the implementation of anti-drug policy: according to the report of the United Nations Office on Drugs and Crime for 2019, the rate of appearance of non-listed substitutes for controlled drug precursors is steadily increasing, the effectiveness of existing measures aimed at combating their trafficking is questionable (International Control Committee for Drugs, report for 2019 [electronic resource], URL: https://www.incb.org/documents/Publications/AnnualReports/AR2019/Press_Kit/Russian_INCB_press_kit_final.pdf (accessed 31.01.2022).

The world practice of suppressing illicit trafficking in narcotic drugs and psychotropic substances is characterized by the extensive use of individual control systems: each narcotic and psychotropic substance is entered into special lists by the relevant state authorities and described in detail, only after that these substances can be recognized as narcotic and psychotropic ^[2]. Thus, the legislation of the Russian Federation uses a system of individual control over the illicit trafficking of narcotic drugs and psychotropic substances ^[3]. In the Federal Law of 08.01.1998 N 3-FZ "On narcotic drugs and psychotropic substances", these drugs and substances are determined exclusively by the blank method. For example, the definition of "narcotic drug" (Article 1 of the Federal Law)  it includes a direct indication of the inclusion in the List of narcotic drugs and psychotropic substances, other signs are not indicated. It is noteworthy that Russian legislation knows the concepts of "narcotic intoxication" (for example, Article 23 of the Criminal Code of the Russian Federation) and "drug addiction" (Article 1 of the Federal Law "On Narcotic Drugs and Psychotropic Substances"), but these concepts are not used when defining narcotic and similar drugs and substances ^[4]. This approach is an extreme form of individual control over the illicit trafficking of narcotic drugs and psychotropic substances and is the main reason for the existence of the phenomenon of "designer drugs" arising from the fact that any psychoactive drug or substance has a de facto legal status due to its absence from the control lists ^[5]. The norm of Part 1 of Article 2.2 of the Federal Law "On Narcotic Drugs and psychotropic Substances" also raises questions: to establish control over new potentially dangerous psychoactive substances, an individual control system is provided – a Register of new potentially dangerous psychoactive substances. In fact, a parallel system of individual control is being formed and, as a result, control over drugs and substances that are not on these lists is not being established. In order to reduce the costs of the existing individual system of control over the turnover of narcotic drugs and psychotropic substances in the Russian Federation, the legislator took the path of creating a duplicate system, which, in our opinion, cannot ensure the protection of public order and public safety.

The universal system of control over the turnover of narcotic drugs and psychotropic substances consists in establishing control over substances with certain characteristics, and, often, their names are not included in the lists of controlled substances. This approach is based on the analysis of the signs of the relevant substances: their ability to cause a state of drug intoxication, physical, psychological dependence, and so on. In the theory of criminal law , there are doctrinal provisions on three signs of a narcotic drug and a psychotropic substance:  1) medical sign; 2) legal sign; 3) social sign. ^[6] A medical sign consists in the possibility of the corresponding substance to cause a state of drug intoxication and changes in consciousness in the person who used it, as well as to form pathological dependence (both physiological and psychological). The basis for the allocation of this feature are the provisions of the ICD-10, namely the description of the disease under the code F1x.2 ("addiction syndrome") (International Statistical Classification of Diseases and Related Health Problems 10th Revision (ICD-10)-WHO Version for 2016 [electronic resource], URL: https://icd.who.int/browse10/2016/en#/F10-F19 (accessed 12.02.2022). The legal sign of a narcotic drug and psychotropic substance consists in fixing its name or chemical formula in the control lists adopted in the appropriate manner by the state authorities of the state. The widespread use of a legal attribute to recognize a substance, a drug as narcotic or psychotropic is characteristic of individual control systems, and the remaining signs (medical, social) are ignored. A social sign is understood as causing damage to objects protected by criminal law in the process of trafficking or consumption of a corresponding narcotic drug or psychotropic substance ^[7]. The universal system for controlling the turnover of narcotic drugs and psychotropic substances seems to be the most successful, since in this case the phenomenon of "designer drugs" is practically excluded and the share of blank norms in criminal legislation is reduced, which in turn has a positive effect on the legal technique of the relevant regulatory legal acts. To analyze the existing systems of control over the turnover of narcotic drugs and psychotropic substances and to identify common patterns of functioning of control systems for the turnover of these drugs and substances, it is necessary to refer to the experience of foreign countries.

In the criminal legislation of foreign countries and in the sources of international criminal law, there are examples of the use of alternative individual control systems for the circulation of narcotic drugs and psychotropic substances, ranging from fully universal systems to mixed systems combining the features of both individual and universal control. By classifying control systems in the criminal and administrative legislation of foreign countries, the following types can be distinguished:

1) Individual control systems;

2)    Universal control systems;

3) Mixed control systems.

Finland, Mexico and India are among the States using individual control systems for the circulation of narcotic drugs and psychotropic substances. In Finnish legislation, drug trafficking is prohibited by a separate regulatory legal act – Huumausainelaki, which has a blank character and refers to the relevant control lists (Finland Narcotics Act on 30 May 2008 [electronic resource], URL: https://www.finlex.fi/fi/laki/kaannokset/2008/en20080373_20140539.pdf (accessed 16.02.2022). The definition of a narcotic drug is fixed in paragraph 5 of Section 3 of the Law: "drugs are understood as a) substances and means included in Lists I-IV of the United Nations Single Convention on Narcotic Drugs of 1961; b) substances and means included in lists I-IV of the United Nations Single Convention on Psychotropic Substances of 1971 ...". Also, this norm refers to the normative legal acts of the European Union and the national level: the EU Convention on the turnover of precursors of narcotic drugs and the Consul's decision on the recognition of drugs and substances as narcotic or psychotropic. There is no definition of medical and social signs of narcotic drugs and substances similar to them in Finnish legislation, the entire control system is based solely on a legal sign as a criterion for the inclusion of these drugs and substances in the relevant lists. In section 3 "a" there is a mention of "intoxication" and "danger" of narcotic drugs and psychotropic substances: "the ability [of a substance or means] to cause intoxication and to have a danger ... should be determined by the Finnish Medical Agency with the [involvement of] the National Institute of Welfare and Health, Police and Customs Service." A similar procedure for the control of new potentially dangerous psychoactive substances, their inclusion in the control lists since 2011 is carried out in a simplified manner by contacting the police or Customs authorities to a Medical Agency in order to establish the presence or absence of the studied drugs and substances of medical and social characteristics. It is noteworthy that the Criminal Code of Finland regards crimes related to illicit trafficking in narcotic drugs and psychotropic substances as "international offenses" (Criminal Code, Finland [electronic resource], URL: https://www.legislationline.org/download/id/6375/file/Finland_CC_1889_am2015_en.pdf (accessed 16.02.2022). It seems that this logic of the legislator is connected with the blank nature of the Drug Law, referring to the provisions of both UN and EU conventions.

In the legislation of Mexico, the establishment of control over the circulation of narcotic drugs and psychotropic substances is provided for by a Single Act on Health (Ley General de Salud. Febrero 7, 1984) (General Act of Health, Mexico [electronic resource], URL: https://www.global-regulation.com/translation/mexico/560288/law-general-of-health.html (accessed 16.02.2022). This regulatory legal act includes a list of controls (art. 234, Ch. V), without referring to individual decisions of the relevant authorities. The definition of narcotic drugs and psychotropic substances on medical and social grounds is also absent, in the disposition of the norm of Article 234 of the Health Act there is the wording "for the purposes of this Act, drugs are recognized:…». The Mexican Criminal Code also does not additionally define narcotic drugs and psychotropic substances, the following provision is fixed in Article 193: "Narcotic, psychotropic and other substances or plants are recognized as such by the Health Act, conventions and treaties" (Federal Criminal Code, Mexico [electronic resource], URL: https://www.global-regulation.com/translation/mexico/560104/federal-penal-code .html (accessed 02/16/2022). Also, the norm on liability for illicit trafficking in narcotic drugs and psychotropic substances is duplicated in Chapter VII of the Act on Health, the definition of the objects of crimes is also blank and based solely on the legal attribute: "narcotic drugs, psychotropic and other substances or plants that are defined in this Law ...". The procedure for recognizing a substance as narcotic or psychotropic is not fixed in this Act, nor is any form of control over new potentially dangerous psychoactive substances mentioned - any norm affecting the regulation of drug trafficking refers to the control list and international treaties of Mexico. The medical and social signs of narcotic drugs and psychotropic substances are known to Mexican legislation (Chapter IV "Program against Pharmacological dependence" of the Health Act), but these signs are not used in their definition. Thus, it can be argued that the system of control over the illicit trafficking of narcotic drugs and psychotropic substances in Mexico is exclusively individual.

Indian legislation includes a detailed description of each controlled agent or substance. The Narcotic Drugs and Psychotropic Substances Act of 1985, with subsequent amendments, defines a narcotic drug as "coca leaves, cannabis, opium, poppy straw and includes all derivatives" (The Narcotic Drugs and Psychotropic Substances Act, India [electronic resource], URL: https://legislative.gov.in/sites/default/files/A1985-61.pdf (accessed 16.02.2022). The Act also describes in detail each narcotic drug and psychotropic substance, their precursors and derivatives and includes a control list consisting of 77 drugs and substances. The list also includes some of the new potentially dangerous substances, and the legal technique for fixing them is radically different from traditional drugs. Thus, lysergic acid is fixed in the list by determining the "international name" (+-LYSERGIDE), "other name" (LSD, LSD-25) and "chemical name (+-N, N-Diethyllysergamide (dlysergic acid diethylamide)); new potentially dangerous psychoactive substances are fixed in the list only by "international name" (salts and preparations of the above). Such a method of fixing "designer drugs" in the control list actually extends an individual form of control to an unlimited list of narcotic drugs and psychotropic substances without using the tools of a universal control system, since the Act does not include the definition of controlled substances by using medical and social signs. The Criminal Code of India does not include rules on liability for illicit trafficking in narcotic drugs and psychotropic substances (Penal Code, India [electronic resource], URL: https://legislative.gov.in/sites/default/files/A1860-45.pdf (date of appeal 16.02.2022), all elements of the corpus delicti and the rules of sentencing for the commission of these crimes are provided for by the Act on Narcotic Drugs and Psychotropic Substances of 1985. Article 9A of the Act establishes the powers of the Government to control and regulate narcotic drugs and psychotropic substances, which consist in the unlimited ability of authorities to recognize drugs and substances subject to control, based only on the "public interest".

A common feature of individual control systems of foreign States is the use of an exclusively legal attribute in the definition of narcotic and similar drugs and substances in order to establish control over their turnover. Medical and social signs are not used, but may be known to the legislator when determining the procedure for recognizing substances as narcotic or psychotropic. The problem of new potentially dangerous psychoactive substances is solved by creating a parallel control system with tools duplicating the main system, or is completely ignored. The exception is India, where the individual control system is extended to "salts and derivatives of the above [agents and substances]", but at the same time the criteria for "derivatives [of agents and substances]" are not disclosed.

The States using the universal system of control over the turnover of narcotic drugs and psychotropic substances include Australia and the United Kingdom. Australia 's legislation on countering illicit trafficking in narcotic drugs and psychotropic substances is based on two main regulatory legal acts: The Narcotic Drugs Act of 1967 (Narcotic Drugs Act, 1967 [electronic resource], URL: https://www.legislation.gov.au/Details/C2022C00035 (accessed 16.02.2022) and the Drug Misuse and Trafficking Act of 1985 (Drug Misuse and Trafficking Act, 1985 [electronic resource], URL: http://classic.austlii.edu.au/au/legis/nsw/consol_act/dmata1985256/s36zd.html (accessed 16.02.2022). The 1967 Act was adopted on the basis of the United Nations Single Convention on Narcotic Drugs of 1961 in order to implement its provisions: "the purpose of this Act is to put into effect some of the Australian obligations under the Single Convention on Narcotic Drugs." This Act duplicates narcotic drugs from the Convention, creating four corresponding lists of individual control. The Act of 1985 offers a qualitatively different control system – universal. According to him, "psychoactive substance" means "any substance (with the exception of substances to which this part does not apply) that, when used by a person, has the ability to cause a psychoactive effect"; "psychoactive effect" in turn means "... in relation to a person who uses or has used a psychoactive substance – a) stimulation or depression of the central nervous system of a person, leading to hallucinations or a significant change in motor function, thinking, behavior, perception, awareness, mood, or b) causing a state of dependence, including physical or psychological dependence." This regulatory legal act contains universal criteria for a psychoactive substance, which, in turn, include narcotic drugs, psychotropic substances and new potentially dangerous psychoactive substances. Conducting a systematic analysis of Australian legislation, it can be concluded that the 1985 Act is central to the entire Australian system of control over illicit trafficking in narcotic drugs and psychotropic substances: universal criteria for recognizing a substance prohibited for free circulation and subjected to appropriate control are presented for all drugs and substances with signs of "psychoactivity", including including narcotic drugs. The correlation between the control list and this norm lies in the implementation nature of the control lists, duplication of the UN Convention, while the real criteria for psychoactivity are provided for by the 1985 Act. Based on these provisions, it can be concluded that the Australian system of control over illicit trafficking in narcotic drugs and psychotropic substances is universal, which does not exclude the existence of additional implementation control lists.

The UK's anti-drug legislation consists of the Drugs Act of 2005, the Drug Abuse Act of 1971, the Psychoactive Substances Act of 2016: the laws of 2005 and 1971 use an individual control system, namely, they include implemented lists of drugs and substances provided for by the UN Convention of 1961. The Law on Psychoactive Substances recognizes a substance as prohibited if it "stimulates or depresses the central nervous system of a person, affects the psyche or emotional state" (Psychoactive Substances Act 2016 [electronic resource], URL: https://www.legislation.gov.uk/ukpga/2016/2/section/2 (accessed 16.02.2022). This prohibition applies to all substances, exceptions are provided only for drugs and substances based on alcohol, nicotine and caffeine, an imperative norm is established for the prohibition of all drugs and substances containing the above signs and not falling under the specially specified exceptions. In general, there are 27 regulatory legal acts in the UK regulating the use in particular and the turnover in general of narcotic drugs and substances similar to them, only those forms and methods of turnover of these drugs and substances that are directly provided for by legislation are recognized as legal. The system of control over the illicit trafficking of narcotic and psychotropic substances, new potentially dangerous psychoactive substances in the UK is universal, which follows from the mandatory norm of the Law on Psychoactive Substances of 2016.

The states using a mixed system of control over the illicit trafficking of narcotic drugs and psychotropic substances include Germany and the USA. The legislation of the Federal Republic of Germany consists of the Federal Law on Narcotic Drugs and Psychotropic Substances of 1951, which in Article 2 defines narcotic drugs as "addictive substances and drugs having an effect related to morphine, cocaine or cannabis, as well as substances and drugs produced on their basis or having an effect similar to the same", psychotropic substances as "substances and drugs that cause addiction, containing amphetamines, barbiturates, benzodiazepines or hallucinogens, such as lysergide or mescaline, or having an effect similar to the same" (Federal Act on Narcotic and Psychotropic Substances [electronic resource], URL: https://www.fedlex.admin.ch/eli/cc/1952/241_241_245/en (accessed 16.02.2022). It also provides for the creation of control lists that individually describe narcotic drugs and psychotropic substances. The mixed nature of the control system lies in the fact that when using elements of universal control (indication of a medical sign), substances are considered prohibited only after they are included in the relevant lists, at the same time analogues of individually prohibited drugs and substances are regulated by a general norm.

A comprehensive control system has been created in the USA, which includes both the individual prohibition of trafficking in narcotic drugs and psychotropic substances, and the establishment of universal control over new potentially dangerous substances, referred to by the American legislator as "analogues". According to the Law on Controlled Substances, all narcotic drugs and psychotropic substances are grouped into five lists, the basis for the inclusion of a drug or substance is the degree and nature of addiction, therapeutic value and the power of destructive action (21 U.S. Code § 812 - Schedules of controlled substances 2016 [electronic resource], URL: https://www.law.cornell.edu/uscode/text/21/812 (accessed 16.02.2022). Elements of universal control are contained in case law, in this sense, the decision of the U.S. District Court for the District of Colorado of November 20, 1992 (the case of US vs Damon & Forbes) is noteworthy (Criminal Action No. 92-CR-105, United States of America, Plaintiff, v. DAMON S. FORBES, et. al., Defenders [electronic resource], URL: https://www.erowid.org/psychoactives/law/cases/federal/federal_analog1.shtml (accessed 16.02.2022). During the court session, the government provided evidence in the form of Frank Sapienza examination, according to which AET is "substantially similar" to the tryptamine family and has hallucinogenic and stimulating properties. At the same time, Rojer Eli showed at the hearing that the chemical structure of AET is significantly different from the structure of substances belonging to the tryptamine family. Analyzing the arguments of the parties, the court referred to the precedents of American Tobacco Co. v. Patterson and Yuing vs Rogers, according to which "the law should be interpreted in such a way as to avoid unintended or absurd results", therefore, in the opinion of the court, in order to prevent this unintended result, paragraph (i) of paragraph 813 of the Protected Substances Act should apply to any substance that, according to the government, is an analogue controlled substance ("substantially similar to a controlled substance"). The court further pointed out that the term "controlled substance analogue" is defined as being as close as possible to the policy of the Controlled Substances Act, requiring a chemical bond with the controlled substance, or the existence of some stimulating or hallucinogenic effect on the central nervous system similar to or greater than such an effect of any controlled substance. The wording "substantially similar to a controlled substance" can be translated as "essentially similar to a controlled substance", this fact alone is enough to recognize a new potentially dangerous substance as such, without actions to form new lists or include such a substance in existing lists, respectively, US criminal law allows recognizing a substance as a new potentially dangerous substance without the establishment of a legal attribute of a narcotic or similar substance, which indicates a mixed system of control over the illicit trafficking of narcotic drugs and psychotropic substances.

Having analyzed the existing control systems for illicit trafficking of narcotic drugs and psychotropic substances, as well as new potentially dangerous psychoactive substances, it is possible to come to the conclusion about the viability of a universal control system. States such as Australia and the United Kingdom, when establishing control over a drug or substance, directly take into account their medical and indirectly social characteristics, as evidenced by the definitions of narcotic drugs and psychotropic substances in their legislation. This approach also applies to the so-called "designer drugs" or new potentially dangerous psychoactive substances, since the phenomenon of "designer drugs" has become possible solely due to the widespread use of an individual control system: with a slight change in the chemical formula of a substance or with the appearance of a new formula, this substance is automatically considered legal and not under control. The legislation of the USA and Germany use mixed control systems that provide for the prohibition of drugs and substances on the basis of their inclusion in the relevant lists, and new potentially dangerous psychoactive substances are prohibited on the basis of a general rule.

Summing up this study, it should be pointed out that the system of individual control in force in the Russian Federation does not comply with the requirements of pdp. 11, paragraph 47 of the Decree of the President of the Russian Federation dated 02.07.2021 No. 400 "On the National Security Strategy of the Russian Federation", since the existing system of control over illicit trafficking in narcotic drugs and psychotropic substances does not allow to respond promptly to changes in the structure drug market. The system of control over the turnover of new potentially dangerous psychoactive substances, duplicating the already existing system of control over the illicit trafficking of narcotic drugs and psychotropic substances, also does not meet the requirements of national security. The conclusion about the non-compliance of the existing domestic control system with the requirements of national security is based on the following provisions:

1) The Russian legislator does not use medical and social signs when determining the range of controlled drugs and substances, but is limited to indicating a formal legal sign ("the substance is prohibited because it is prohibited");

2) The control system for new potentially dangerous psychoactive substances completely duplicates the tools of the already existing control system, which contradicts the very essence of the problem of "designer drugs";

3)    A register of new potentially dangerous psychoactive substances has not yet been created.

In order to bring the existing system of control over illicit trafficking of narcotic drugs and psychotropic substances in the Russian Federation into compliance with the Presidential Decree "On the National Security Strategy of the Russian Federation", a transition from an exclusively individual control system with the prospect of transition to a universal system is necessary, which will ensure the full implementation of pdp. 11, paragraph 47 of the Presidential Decree.