In breach of international law: Ukrainian drug legislation and the European Convention for the Protection of Human Rights and Fundamental Freedoms

Last October the Ukraine Ministry of Health issued a Resolution that introduced amendments to the “Table of drug substance amount”, on the base of which authorities and courts determine the character of illegal possession of drugs (as administrative or criminal), came into effect.

The amendment resulted in significant (up to 20 folders) reduction of drug amounts, possession of which implies criminal responsibility. Thus, according to the old version of the table criminal liability applies for possessing more than 0.1 gram of acetylated opium, whereas the new revision lowered this level to 0.005 gram. Subsequently, anyone detained for the possession of 0.005-0.9 gram of acetylated opium or heroin faces criminal prosecution and a possible penalty of up to three years of imprisonment. With the 0.005 limit (which is the amount of drugs that can be found in used syringes) the needle and syringe programs are also put at risk.

This year, the International HIV/AIDS Alliance in Ukraine made an appeal against Ministry of Health in the Administrative court with the goal to dismiss the resolution (declare it unlawful). The court hearing will be held on June 15.

The appeal argues that the Resolution violates Alliance’s right and ability to implement the National Programme to Insure HIV Prevention, Treatment, Care and Support for HIV Infected Persons and AIDS Patients in 2009-2013, as approved by the Law of Ukraine in 2009, namely provision of social services on supplying sterile medical equipment, such as needles and syringes which should cover 60 % of people who inject drugs by 2013. The appeal also argues that such practice conflict with the national interests, violate the National Constitution of Ukraine and other laws of Ukraine, contradict the international law, including the Convention for the Protection of Human Rights and Fundamental Freedoms.

In turn, the Canadian HIV/AIDS Legal Network in partnership with EHRN has developed a Discussion paper on the Resolution outlining how the it violates the international law. Paper 'In breach of international law: Ukrainian drug legislation and the European Convention for the Protection of Human Rights and Fundamental Freedoms' developed in reaction to the changes in the drug legislation in Ukraine.

The discussion paper argues the incompatibility of Ukrainian table of drug substance amount within the framework of European Convention for the Protection of Human Rights and Fundamental Freedoms, namely with respect to the application of Article 5(1)(a) (on the right to liberty and security of person), Article 7 (no punishment without law) and Article 14 (prohibition of discrimination) of the European Convention.

According to the laws of Ukraine, regulatory acts issued by the ministries should conform to the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter ‘the European Convention’), the practice of the European Court, and international treaties to which Ukraine is a signatory. The paper concludes that the violations of the European Convention mean that the resolution also contradicts the Ukrainian Constitution, national legislation and international commitments.

As such the arguments presented in the paper can be used to challenge the policies that criminalize drug use/possession for personal use and are signatory to the Convention, meaning the drug policies do not correspond to the international obligations of the country and the principles of the rule of law. The argumentation presented in the paper used by the International HIV/AIDS Alliance who filed an administrative appeal to the District Administrative Court of the Kyiv City on declaring unlawful specific articles of the Resolution.