It is unquestionable, that the state is allowed take measures and regulate the designer drugs market in order to protect public health and minors. However, in a democratic state the means used by the public administration need to be in compliance with the rule of law. This means that they require legal basis and need to be carried out within the law. It imposes a special obligation on the authorities to inform about the steps taken and comment on them.

Statements made by the highest officials could suggest that the danger to human life and health posed by the designer drugs justify acting on the fringes of the law. Concern should be raised especially by the Prime Minister’s statement saying that since “routine legal measures” were inefficient, it is necessary to take “non-standard” steps. According to the Prime Minister, officials need to realize that in the case of designer drugs they should not be concerned with absolute compliance with the law and that everything needs to be done in order to eliminate the danger even if it means acting on the fringes of the law.

Such statements uttered by the head of the public administration create atmosphere of an extraordinary threat and could be read as a de-facto encouragement to act against the law. It is difficult to interpret differently the encouragement to act “on the fringes of the law.” In a democratic state under the rule of law Prime Minister should always care about the compliance with the law and encourage his subordinates to apply law, even if in a given moment law application may seem inefficient. If this is the case, it is the role of the executive branch to initiate changes of the law, and not calling for breaking the law.

According to the Polish constitution, only a state of emergency could justify taking recourse to measures deeply interfering with basic rights and freedoms of the citizens. Outside these situations authorities are obligated to act within the law provided for regular emergencies. Therefore, if the state does not introduce the state of emergency, it means that the emergency can be dealt with within the boundaries of the standard measures.

Moreover, it is worth noting that the problem of the designer drugs has existed for about two years.   Within this period of time the government had time to carry out a serious debate and introduce legal means to deal with the market of the designer drugs. Although Helsinki Foundation for Human Rights is not denying the purposefulness of the legal work on new act concerning legal drugs’ market taking place at the moment, it believes that it needs to be considered whether the haste in creating new regulations will not be detrimental to the quality of the provisions. Moreover it should be asked whether sudden inspections aiming at instant and complete liquidation of the designer drugs market is sufficiently justified.

Concern is raised especially by the steps taken by the Chief Sanitary Inspectorate (Główny Inspektorat Sanitarny) whose decisions of 2 October 2010 was the basis for closing more than a thousand shops.

Chief Sanitary Inspectorate is authorized to take measures in order to counteract threats to health and life. Undoubtedly they should use these means whenever it is necessary, also in the case of the discussed harmful psychoactive substance. Helsinki Foundation for Human Right is not questioning the legality of the decision of the Chief Sanitary Inspector, however, it would like to point out that the organ failed to demonstrate due diligence. Formal defects of the decision (for instance the lack of an addressee) can possibly result in the future responsibility of the State Treasury to persons whose shops were closed. Moreover the statement of the Prime Minister suggests that the intensive inspections were a part of a bigger plan to close all the shops selling designer drugs and even arrest their owners. In this context the question arises whether there exist any grounds for setting traps for citizens in order to achieve a political goal.

The statement of the Ministry of Justice, claiming that the owners of the shops cannot claim damages, since the decision on which the closing of the shops was based is legal,  also raises concern. According to the Helsinki Foundation of Human Rights, Minister of Justice should remain particularly careful in formulating opinions in cases that without doubt will be evaluated by independent courts, even when these opinions are based on the belief in the legality of decisions of other institutions.