Prosecutor's supervision of detection and investigation of drug crimes: International standards and best practices

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National Academy of Internal Affairs

Prosecutor's supervision of detection and investigation of drug crimes: International standards and best practices

Iryna Shelikhovska Postgraduate Student

Mykhailo Hribov Doctor of Law, Professor

Abstract

The rapid spread of drug addiction makes it necessary to step up counteraction to drug crimes (while the police strictly observe human rights), which is possible only if the prosecutor's supervision is effective, which determines the relevance of the study of its problems.

The purpose of the study is to characterise the state of legal regulation and practical implementation of prosecutor's supervision over operational and investigative counteraction and pre-trial investigation of criminal offences in the field of drug trafficking in terms of compliance with international law, and also to formulate recommendations for borrowing positive practices of other countries in terms of such supervision.

Using systematic and structural, comparative legal, and logical legal methods, a number of acts of international law and legislation of Ukraine and other states are comprehensively investigated. It is proved that the content of international standards of prosecutor's supervision over the detection and investigation of drug crimes is made up of separate provisions available in various sources of international law, recommendations are developed on the activities of national prosecutor's offices in the field of countering crime in general and the activities of state bodies on criminal law, special criminological, operational and investigative, and criminal procedural counteraction to drug-related crimes.

The use of these methods and materials helped to determine that Ukraine complies with the standards under study (even at a higher level than some member states of the European Union), in particular, regarding the independence of the prosecutor's office from the executive and judicial authorities, the concentration of basic functions in the field of criminal justice, ensuring effective supervision of pre-trial investigations in the form of procedural guidance.

However, in Ukraine, it is advisable to continue working on: introducing the specialisation of prosecutors in supervision of the detection and pre-trial investigation of drug crimes and the development of methods for countering drug crimes by law enforcement agencies; expanding the discretionary powers of the prosecutor and ensuring real independence and independence of their use; ensuring supervision of the police's compliance with the rule of law during the initiative detection of drug crimes. The results of the study can be used to improve the legislation of Ukraine and the practice of its application

Keywords: narcotic drugs; prosecutor's office; legality; discretionary powers; human rights; operational and investigative activities

An integral requirement for the practical implementation of Ukraine's course of accession to the European Union (EU), as declared in the Constitution of Ukraine UN Guidelines on the Role of Prosecutors Adopted by the VII UN Congress on the Prevention of Crime and the Treatment of Offenders. (1990, September). Retrieved from https://pravo.org.ua/wp-content/uploads/old/files/oon_com_split_1.pdf.

² Single Convention on Narcotic Drug. (1961, March). Retrieved from https://ips.ligazakon.net/document/view/mu61k02u7an = 2&ed = 1961_03_30.

³ Convention on Psychotropic Substances. (1971, February). Retrieved from https://ips.ligazakon.net/document/mu71016?an = &ed = &dtm = &le =.

⁴ United Nations Convention on Combating Illicit Traffic in Narcotic Drugs and Psychotropic Substances. (1988, December). Retrieved from https://zakon.rada.gov.ua/laws/show/995_096#Text.

⁵ Recommendation of the Committee of Ministers of the Council of Europe No. Rec (2000) 19 “To Member States on the Role of the Public Prosecutor's Office in the Criminal Justice System”. (2000, October). Retrieved from https://supreme.court.gov.ua/userfiles/ Rec_2000_19_2000_10_6.pdf.

⁶ PACE Recommendation No. 1604 “On the Role of Public Prosecutors in a Democratic Society Based on the Rule of Law”. (2003, May). Retrieved from https://assembly.coe.int/nw/xml/xref/xref-xml2html-en.asp?fileid=17109&lang = en.

⁷ Resolution of the Parliamentary Assembly of the Council of Europe No. 1549 “Functioning of Democratic Institutions in Ukraine”. (2007, April). Retrieved from https://zakon.rada.gov.ua/laws/show/994_760#Text.

⁸ European Guidelines on Ethics and Conduct for Public Prosecutors. (2005, May). Retrieved from https://library.nlu.edu.ua/POLN_ TEXT/SENMK/pr_osn1.pdf.

⁹ Constitution of Ukraine. (1996, June). Retrieved from https://zakon.rada.gov.ua/laws/show/254%D0%BA/96-%D0%B2%D1%80#Text.

¹⁰ Criminal Code of Ukraine. (2001, April). Retrieved from https://zakon.rada.gov.ua/laws/show/2341-14#Text., is to bring the legal regulation of state institutions in line with the standards of this international organisation. This applies, among other things, to the criminal justice authorities, in particular, the prosecutor's office. Similarly, the legal regulation of certain areas of law enforcement activities should be brought into line with the requirements of international laws and regulations. This, in particular, applies to countering illegal trafficking in narcotic drugs, psychotropic substances, their analogues and precursors. The above determines the need for a comprehensive assessment of the current state of legislative regulation of the status and functions of the prosecutor's office and its role and place in the fight against illegal drug trafficking - according to the criteria of effectiveness and compliance with international standards. It is necessary to establish how these standards are implemented (or not implemented) in the practice of other countries in order to suggest optimal ways to implement them in domestic legislation. An analysis of EU practices shows that deviations from certain standards due to national peculiarities can have different consequences, ranging from acceptable to extremely negative. international law prosecutor drug trafficking

Thus, on May 27, 2019, the Court of Justice of the European Union (CJEU) declared the Office of the German Federal Public Prosecutor (Staatsanwaltschaft) legally incompetent to issue European Arrest Warrants (EAW) due to its lack of institutional independence Constitution of Ukraine. (1996, June). Retrieved from https://zakon.rada.gov.ua/laws/show/254%D0%BA/96-%D0%B2%D1%80#Text. Judgment of the Court (Grand Chamber) in Joined Cases No. C508/18 and No. C82/19 PPU. (2019, May). Retrieved from https://curia. europa.eu/juris/document/document.jsf?docid = 214466&doclang = en..

As a consequence, S. Glaser & S. Hartmann (2022) raised the question of how the German criminal prosecution system differs from the approaches of other European countries that issue European Arrest Warrants, as well as the question of whether the prosecutor's office in Germany is really not sufficiently independent in this regard. According to the conclusions of B. Sramel & L. Klimek (2022), in the Slovak Republic, the prosecutor's office has a complete monopoly on prosecution, which is a negative consequence of the 1948 coup d'etat and the subsequent rise of the communist regime. This minimises the possibility for other entities (for example, the victim) to exercise their natural rights.

Ukrainian researchers have already studied both the implementation of the provisions of international agreements in the legislation of Ukraine on the prosecutor's office, and the experience of foreign countries in this area. Thus, R.M. Bilokin (2023) found that international standards in the activities of the prosecutor's office include the entire array of international legal acts regulating relations in this area and international judicial practice. The researcher investigated the standards of prosecutor's supervision over the legality of criminal proceedings and came to the conclusion that domestic legislation is more adapted to them, but implementation is still taking place today.

L.T. Riabovol (2021) considered the legal acts of the EU governing bodies as the basis for reforming the prosecutor's office in Ukraine. The researcher concludes that the specific place of the prosecutor's office in the mechanism of the state and functions in different states are not the same. However, in all European countries, prosecutors operate on the same principles consolidated in the documents of the Council of Europe. The researcher considers compliance with the requirements of these documents by Ukraine mandatory. V. Nalutsyshyn (2021), after examining the European experience of legal regulation of the status and functions of the prosecutor's office, came to the conclusion that the experience of foreign countries does not exclude the assignment of supervisory functions to the prosecutor's office, which ensure the rule of law and order in society. The researcher suggests that the general trend in the development of the prosecutor's office of Ukraine should be the expansion of its functions, non-interference of the legislative and executive authorities in the activities of the prosecutor's office. The conclusions of the above-mentioned Ukrainian researchers are to some extent debatable and subject to verification.

In parallel with these studies, research was also conducted on the introduction of international standards in Ukraine and the use of the experience of other countries in countering drug crime. Thus, the paper by V.V. Solovei (2023) is dedicated to international standards and foreign experience in countering drug crimes committed by organised groups. The researcher concludes that it is necessary to reform the national system of drug crime prevention in terms of expanding the powers of information and analytical police units to accumulate and process operational information. Consent to this conclusion automatically raises the question of the means of ensuring the rule of law in the event of the proposed expansion of powers.

V.H. Yarmaki (2021), investigating the experience of foreign countries in countering drug crimes, came to the conclusion that measures to counteract illegal drug trafficking fall within the internal competence of each individual state. However, the use of domestic means alone to combat international drug crimes is not always sufficient. This struggle must be international, since an individual country is not able to effectively resist transnational drug crime. T.V. Serhiieva (2020) investigated the results of the implementation of the norms of international treaties on countering drug trafficking in the legislation of Ukraine. She considers the measures taken by Ukraine to contribute to the harmonisation of Ukrainian legislation with international standards for combating illegal drug trafficking and improve the effectiveness of international cooperation in this area. The researcher suggests that further improvement of the national legislation on combating drug trafficking is necessary (but does not make specific proposals).

The above-mentioned studies on the introduction of international standards and the use of foreign experience have always been conducted separately: 1) on the activities of the prosecutor's office; 2) on countering illegal drug trafficking. So far, they have not intersected and have not been comprehensively investigated. This is an additional argument in favour of the need to conduct this study, the purpose of which was to determine the compliance of the legal regulation and the actual state of prosecutor's supervision over the detection and investigation of drug crimes in Ukraine and other countries, international standards, and to make proposals on the use of foreign experience of such supervision in Ukraine.

Materials and Methods

With the help of the logical and legal method, the concept was developed and the content of international standards in the field of legal regulation of countering drug crimes was revealed; the main international standards for the activities of the prosecutor's office on countering crimes in the field of countering illegal trafficking in narcotic drugs, psychotropic substances, precursors and their analogues were highlighted. Using the systematic and structural method, the role of the prosecutor's office in the implementation of these standards was determined, and the practical activities of the national prosecutor's office were evaluated from the standpoint of the above-mentioned standards. The comparative legal method was used in the analysis of the international experience of the prosecutor's office in countering drug crimes and determining those elements that are appropriate to use in Ukraine.

In the course of the study, the provisions of a number of international legal acts were analysed and summarised, including: the UN Guidelines on the Role of Prosecutors (Adopted by the VII UN Congress on the Prevention of Crime and the Treatment of Offenders. Havana, Cuba, August 27-Septem- ber 7, 1990)1; Unified Convention on Narcotic Drugs No. 1137 of 30.03.19612; Convention on Psychotropic Substances of 21.02.19713; United Nations Convention Against Trafficking in Narcotic Drugs and Psychotropic Substances, 19884; Standards of professional responsibility, a statement of the main duties and rights of prosecutors, adopted by the International Association of Prosecutors (1999); Recommendation REC (2000) 19 of the Council of Europe “To Member States on the Role of the Public Prosecutor's Office in the Criminal Justice System” (Adopted by the Committee of Ministers on 6 October 2000 at the 724^th meeting of the ministers' deputies)⁵; PACE Recommendation 1604 (2003) 11 “Role of the public prosecutor's office in a democratic society governed by the rule of law” of 27 May 20036; PACE Resolution No. 1549 (2007) of April 19, 2007 “Functioning of Democratic Institutions in Ukraine”⁷; European Guidelines on ethics and conduct of public prosecutors: the Budapest Guidelines Adopted at the 6^th Conference of European prosecutors General in Budapest on 31 May 20 058. The results of the analysis and generalisation of these documents were compared with the provisions of the Constitution of Ukraine⁹, Criminal Code (CC)¹⁰ and Criminal Procedural Code (CPC) of Ukraine¹ Criminal Procedural Code of Ukraine. (2013, April). Retrieved from https://zakon.rada.gov.ua/laws/main/4651-17?lang = en#Text., Laws of Ukraine “On the Prosecutor's Office”¹, “On the Operational and Investigative Activities” Law of Ukraine No. 1697-VII “On the Prosecutor's Office”. (2014, October). Retrieved from https://zakon.rada.gov.ua/laws/show/1697- 18#Text. Law of Ukraine No. 2135-XII “On the Operational and Investigative Activities”. (1992, February). Retrieved from http://zakon3.rada. gov.ua/laws/show/2135-12. and other laws and regulations of Ukraine.

At the next stage, according to the national legislation acts of other states and the analysis of foreign legal practice, the features of advantages and disadvantages of prosecutorial activities for detecting and investigating drug-related crimes abroad were established.

Results

International standards of prosecutor's supervision. In the theory of law and legal practice, issues of certain international standards (their concept, content, classification, forms) are most often raised in the context of human rights. The terms “international legal standards of human rights”, “international human rights standards”, “international standards of human and civil rights and freedoms”, etc., are used.

The main features of such standards are that they are: first, consolidated in acts of international law (conventions, treaties, directives, recommendations, decisions, etc.); second, that they define the minimum necessary and/or desired list of content and scope of specific human rights. According to international standards, states must guarantee and ensure: the human right to life, the right to liberty and security of person, the right to respect for dignity, the right to respect for private and family life, the inviolability of the home, the exclusion of inhuman treatment, etc.

The implementation of this task involves the introduction of appropriate standards, first of all, in the work of law enforcement agencies. These bodies, on the one hand, provide protection of the individual and society from illegal encroachments on life, personal inviolability, property, housing, etc., and on the other hand, they themselves can unjustifiably restrict human rights when it comes to detainees, arrests, suspects, accused, convicts, persons against whom compulsory medical measures are supposed to be applied, etc. Therefore, international human rights standards should be directly embodied in the activities of law enforcement agencies. In accordance with this, the activities of law enforcement agencies of individual states are also subject to international standardisation.

In the vast majority of countries of the world, the key body of the law enforcement system is the prosecutor's office, which is entrusted with the function of prosecution in criminal proceedings, and supervision of compliance with the rule of law by other law enforcement agencies (both during pre-trial investigations and during some other types of law enforcement activities).

Therefore, it is quite natural that the activities of the prosecutor's office should be evaluated, among other things, from the standpoint of compliance with international standards.

Investigating the international standards of the prosecutor's supervision of compliance with the rule of law in criminal proceedings, R.M. Bilokin (2023) attributed to the sources of such standards not only the entire set of acts of international law, the subject of which is the activities of the prosecutor's office, but also the practice of the European Court of Human Rights (ECHR). In addition, the researcher agreed with the widespread view that these sources also include international legal customs. Admittedly, the decision of the ECHR is a guide for Ukrainian prosecutors, which is conditioned by the provisions of the Law of Ukraine “On the Execution of Decisions and Application of the Practice of the European Court of Human Rights” Law of Ukraine No. 3477-IV “On the Execution of Decisions and Application of the Practice of the European Court of Human Rights”. (2006, February). Retrieved from https://zakon.rada.gov.ua/laws/show/3477-15#Text., and Part 2 of Article 8, Part 5 of Article 9 of the Criminal Procedural Code of Ukraine Criminal Procedural Code of Ukraine. (2013, April). Retrieved from https://zakon.rada.gov.ua/laws/main/4651-17?lang = en#Text. UN Guidelines on the Role of Prosecutors Adopted by the VII UN Congress on the Prevention of Crime and the Treatment of Offenders. (1990, September). Retrieved from https://pravo.org.ua/wp-content/uploads/old/files/oon_com_split_1.pdf., where these decisions are recognised as the source of Criminal Procedural Law. However, it is inappropriate to classify international legal customs as international standards. Ultimately, a characteristic feature of the latter is uniformity and formal certainty. The content of standards can be borrowed from customs, but the customs themselves should not be identified with standards, as evidenced by the results of research (Hrystova, 2023; Klymchuk, & Stetsyk, 2023).

In addition, considering the analysis carried out above, the provisions of international human rights instruments should also be included in the sources of international standards of prosecutorial activity. Among the key international documents that consider the main aspects of the legal status of a prosecutor in the field of criminal proceedings, the following can be distinguished:

° UN Guidelines on the Role of Prosecutors (Adopted by the VII UN Congress on the Prevention of Crime and the Treatment of Offenders. Havana, Cuba, August 27 - September 7, 1990)5;

° Standards of professional responsibility, a statement of the main duties and rights of prosecutors, adopted by the International Association of Prosecutors (1999);

° Recommendation REC (2000) 19 of the Council of Europe “To Member States on the Role of the Public Prosecutor's Office in the Criminal Justice System” (Adopted by the Committee of Ministers on 6 October 2000 at the 724^th meeting of the ministers' deputies)¹;

ⁿ PACE Recommendation 1604 (2003) 11 “Role of the public prosecutor's office in a democratic society governed by the rule of law” of 27 May 2003 Recommendation of the Committee of Ministers of the Council of Europe No. Rec (2000) 19 “To Member States on the Role of the Public Prosecutor's Office in the Criminal Justice System”. (2000, October). Retrieved from https://supreme.court.gov.ua/userfiles/ Rec_2000_19_2000_10_6.pdf. PACE Recommendation No. 1604 “On the Role of Public Prosecutors in a Democratic Society Based on the Rule of Law”. (2003, May). Retrieved from https://assembly.coe.int/nw/xml/xref/xref-xml2html-en.asp?fileid=17109&lang = en.;

î PACE Resolution No. 1549 (2007) of April 19, 2007 “Functioning of Democratic Institutions in Ukraine” Resolution of the Parliamentary Assembly of the Council of Europe No. 1549 “Functioning of Democratic Institutions in Ukraine”. (2007, April). Retrieved from https://zakon.rada.gov.ua/laws/show/994_760#Text.;

ⁿ European Guidelines on Ethics and Conduct for Public Prosecutors: Budapest guidelines. Adopted at the 6th Conference of the General Prosecutors of Europe in Budapest on 31 May 2005 European Guidelines on Ethics and Conduct for Public Prosecutors. (2005, May). Retrieved from https://library.nlu.edu.ua/POLN_ TEXT/SENMK/pr_osn1.pdf..

In addition to these documents, among the sources of international standards determining the legal status of a prosecutor in the field of criminal justice, it is advisable to consider the numerous advisory opinions, reports and comments received from the European Commission for Democracy through Law (Venice Commission). It is also necessary to consider the legal positions of the ECHR, which are expressed during the consideration of individual cases. The analysis of the above-mentioned documents and the summary of their provisions allows identifying the standards of the prosecutor's activity in terms of ensuring the prosecution function that are important for this study.

The first of these standards is the introduction of specialisation of prosecutors in procedural guidance and support of public prosecution in certain categories of criminal proceedings. Such categories can be distinguished depending on the severity of the committed criminal offences, the scope of commission (banking system, foreign economic activity, road safety, functioning of computer systems, etc.), public relations that they encroach on, subjects of criminal offences, etc. The main criterion for such specialisation should be the object of criminal encroachment. This standard is introduced in Articles 7 and 8 of Council of Europe recommendation REC (2000) 19 “To Member States on the Role of the Public Prosecutor's Office in the Criminal Justice System” Recommendation of the Committee of Ministers of the Council of Europe No. Rec (2000) 19 “To Member States on the Role of the Public Prosecutor's Office in the Criminal Justice System”. (2000, October). Retrieved from https://supreme.court.gov.ua/userfiles/ Rec_2000_19_2000_10_6.pdf..

The second standard is to assign to the competence of the prosecutor questions about the possibility of applying measures alternative to criminal punishment to a person. Among other things, these are compulsory measures of a medical and educational nature, exemption from criminal liability in connection with effective repentance or reconciliation of the guilty person with the victim, or the transfer of a person on bail, or the loss of public danger to the guilty person. The standard for such content is provided, in particular, in Articles 18 and 19 of the UUN Guidelines on the Role of Prosecutors UN Guidelines on the Role of Prosecutors Adopted by the VII UN Congress on the Prevention of Crime and the Treatment of Offenders. (1990, September). Retrieved from https://pravo.org.ua/wp-content/uploads/old/files/oon_com_split_1.pdf., and in Article 3 of Recommendation REC (2000) 19 of the Council of Europe “To Member States on the Role of the Public Prosecutor's Office in the Criminal Justice System” Recommendation of the Committee of Ministers of the Council of Europe No. Rec (2000) 19 “To Member States on the Role of the Public Prosecutor's Office in the Criminal Justice System”. (2000, October). Retrieved from https://supreme.court.gov.ua/userfiles/ Rec_2000_19_2000_10_6.pdf. PACE Recommendation No. 1604 “On the Role of Public Prosecutors in a Democratic Society Based on the Rule of Law”. (2003, May). Retrieved from https://assembly.coe.int/nw/xml/xref/xref-xml2html-en.asp?fileid=17109&lang = en..

The third standard is the independence and functional and organisational isolation of the prosecutor's office from law enforcement agencies, which are responsible for preventing, detecting, suppressing, and investigating criminal offences. This standard is contained in paragraph “I” of Article 7 of PACE Recommendation 1604 (2003) 11 of 27.05.2003.8. This requirement, among other things, is embodied in the fact that the prosecutor should not independently carry out measures to search for and record factual data on criminal acts of individuals, collect evidence, organise investigative search actions and generally conduct a pre-trial investigation. But the prosecutor is authorised to observe how all this is done by operational units and pre-trial investigation bodies. This gives the opportunity to impartially and objectively assess the actions of these divisions and bodies from the standpoint of compliance with the rule of law.

The fourth standard should be called rational, active and effective performance by the prosecutor of supervisory powers in terms of providing instructions to the investigator on the use of specific procedural means of collecting evidence, their scope, extending the terms of pre-trial investigation, etc. This standard is reflected in the norms of numerous international legal acts. One of these norms is contained in Paragraph “A” of Article 22 of the Council of Europe Recommendation REC (2000) 19 “To Member States on the Role of the Public Prosecutor's Office in the Criminal Justice System”¹. Among other things, it states that the government of the state should promote legal consolidation and ensure the ability of the prosecutor to give the investigative body appropriate instructions to effectively ensure the priorities of criminal policy, which mainly concerns decisions on the work of personnel, methods of collecting evidence, terms of pre-trial investigation, information that the prosecutor receives, etc. Recommendation of the Committee of Ministers of the Council of Europe No. Rec (2000) 19 “To Member States on the Role of the Public Prosecutor's Office in the Criminal Justice System”. (2000, October). Retrieved from https://supreme.court.gov.ua/userfiles/ Rec_2000_19_2000_10_6.pdf. Ibidem, 2000.

The fifth standard is the duty of the prosecutor's office to objectively assess the legality of police actions, respect for human rights when collecting information necessary to start or continue criminal prosecution. This standard is set out in Article 21 of the Council of Europe Recommendation REC (2000) 19 “To Member States on the Role of the Public Prosecutor's Office in the Criminal Justice System” Ibidem, 2000. PACE Recommendation No. 1604 “On the Role of Public Prosecutors in a Democratic Society Based on the Rule of Law”. (2003, May). Retrieved from https://assembly.coe.int/nw/xml/xref/xref-xml2html-en.asp?fileid=17109&lang = en..

The last, sixth standard, is the inexpediency of assigning to the prosecutor's office any functions that do not belong to the sphere of criminal justice. The practical implementation of this requirement should be restricted to limiting the powers of the prosecutor's office only to those that are necessary for the exercise of the prosecution function, through which the tasks of protecting the interests of society and the state are performed. The requirement for such content is contained, in particular, in paragraph “C” of Article 7 of the already mentioned pace recommendation 1604 (2003) 114, and Article 1 of Council of Europe Recommendation REC (2000) 19 “To Member States on the Role of the Public Prosecutor's Office in the Criminal Justice System” Recommendation of the Committee of Ministers of the Council of Europe No. Rec (2000) 19 “To Member States on the Role of the Public Prosecutor's Office in the Criminal Justice System”. (2000, October). Retrieved from https://supreme.court.gov.ua/userfiles/ Rec_2000_19_2000_10_6.pdf..

These standards are not fully implemented in Ukrainian law enforcement practice and criminal proceedings. Among the standards already implemented, it can be noted that in functional and organisational terms, the prosecutor's office is clearly separated from supervised law enforcement agencies (in particular, pre-trial investigation bodies) by the provisions of the Constitution of Ukraine (Article 131-1) Constitution of Ukraine. (1996, June). Retrieved from https://zakon.rada.gov.ua/laws/show/254%D0%BA/96-%D0%B2%D1%80#Text., the Law of Ukraine “On the Prosecutor's Office” Law of Ukraine No. 1697-VII “On the Prosecutor's Office”. (2014, October). Retrieved from https://zakon.rada.gov.ua/laws/show/1697- 18#Text., CPC of Ukraine Criminal Procedural Code of Ukraine. (2013, April). Retrieved from https://zakon.rada.gov.ua/laws/main/4651-17?lang = en#Text.. In addition, by defining in Article 36 of the Criminal Procedural Code of Ukraine Ibidem, 2013 . the requirement for an active form of exercise of supervisory powers by the prosecutor as the procedural head of the pre-trial investigation has been implemented.

Among these powers, there are also those that allow the prosecutor, based on the results of a pre-trial investigation, if there are relevant factual grounds, to apply to the court not with an indictment, but with a request to release a person from criminal liability or with a request to apply compulsory measures of a medical or educational nature. Having deprived the prosecutor's office of the function of general supervision of compliance with laws, the domestic legislator left it certain powers that are directly unrelated to pre-trial investigation and judicial proceedings in criminal cases (representation of the interests of a citizen or the state in court in claim proceedings in cases of recognition of unjustified assets and their recovery into state income).

Ukraine has only partially introduced the principle of specialisation of prosecutors depending on the object of criminal attacks and other factors. The expediency of its introduction is fully justified by the validity of the statement that the specialisation of the prosecutor in one specific area of combating crime will lead to an increase in professionalism and improve the quality of criminal prosecution. The outlined standard is particularly relevant in the field of the subject of this study, since hypothetically the introduction of specialisation of the prosecutor in criminal proceedings related to drug crimes will contribute to the growth of the qualification of prosecutor's personnel. As of 2023, the specialisation of prosecutors has found its embodiment only at the institutional level - in the creation of a specialised anti-corruption prosecutor's office and specialised prosecutor's offices in the field of defence.

International legal standards for countering criminal offences in the sphere of trafficking in narcotic and psychotropic substances. International standards that establish requirements for prosecutor's supervision over the detection and investigation of drug crimes should include not only the requirements put forward by conventions, declarations and recommendations for the activities of the prosecutor, but also the requirements established by international laws and regulations to counteract illegal trafficking in narcotic drugs, psychotropic substances, precursors and their analogues.

Among such acts, it is worth highlighting global-level acts - United Nations documents: Unified Convention on Narcotic Drugs No. 1137 of 30.03.19611; Convention on Psychotropic Substances of 21.02.19712; United Nations Convention Against Trafficking in Narcotic Drugs and Psychotropic Substances, 19883. The latter is the most universal act that has incorporated the conceptual provisions of previous documents. The preamble to this Convention (hereinafter - the Convention, 1988)4 focuses attention on the special danger and criminal illegality of illegal trafficking of these funds and substances, its indissoluble connection with other forms of organised crime, cross-border nature, and the receipt of super-profits from drug trafficking by criminal formations of different countries. Such trafficking is considered a threat to the national security and sovereignty of all countries of the world.

In Article 3 of the Convention, 19885 minimum standards are established for the criminalisation by states parties of specific acts related to illicit trafficking in narcotic drugs and psychotropic substances, and the circumstances of their commission are determined, which must be legally normalised as aggravating penalties. In addition, it is noted that the severity of the punishment established by national legislation for a particular type of act corresponds to its public danger. This article focuses on the possibility of applying measures of influence to those responsible for committing drug crimes, which are an alternative to conviction and criminal punishment: treatment for addiction with subsequent monitoring of the patient, education and re-education, restoration of working capacity and social reintegration of the offender. Paragraph (6) of this article provides for ensuring (in accordance with their own national legislation) that the parties legally assign to the relevant law enforcement agencies such discretionary powers that will enable them to effectively prevent, detect, stop and investigate drug crimes^{1 Single Convention on Narcotic Drug. (1961, March). Retrieved from} https://ips.ligazakon.net/document/view/mu61k02u7an = 2&ed = 1961_03_30.

² Convention on Psychotropic Substances. (1971, February). Retrieved from https://ips.ligazakon.net/document/mu71016?an = &ed = &dtm = &le =.

³ United Nations Convention on Combating Illicit Traffic in Narcotic Drugs and Psychotropic Substances. (1988, December). Retrieved from https://zakon.rada.gov.ua/laws/show/995_096#Text.

⁴ Ibidem, 1988.

⁵ Ibidem, 1988.

⁶ Ibidem, 1988..

The analysis of national legislation and the practice of its application indicates that at present the above standards have already been implemented in the legal acts of Ukraine, which means that law enforcement agencies, in particular, the prosecutor's office, adhere to them in their daily activities. The discretionary powers of the prosecutor do not allow independently making a decision on applying measures alternative to criminal punishment to the person guilty of committing a drug crime, releasing them from criminal liability or serving a sentence. These issues in Ukraine are resolved exclusively by the court, at the request of the party to the proceedings.

The same can be said about ensuring the standards of mutual (international) legal assistance, which is established by Article 7 of the 1988 Convention^{7 Ibidem, 1988.}. It provides for the delivery of international legal assistance in countering drug crimes, in particular: collecting evidence, conducting certain procedural actions (detention, inspection, search), familiarisation with the materials of criminal proceedings, and exchanging information. However, Article 9 of the 1988 Convention provides that each party develops and implements professional training programmes for law enforcement and other bodies specialising in countering drug crimes. Such programmes should include the study of: modern methods of detecting and suppressing drug crimes; routes and means used by drug criminals; organisation of operations to monitor the movement (including cross-border) of drugs and psychotropic substances; methods of tracking assets obtained from the drug business; means of conspiracy of criminal activities in the field of drug trafficking, etc.^{8 Ibidem, 1988.}

The introduction of this standard in the activities of law enforcement agencies in Ukraine today lacks attention from the legislative and executive authorities. Moreover, there is a certain regression in this issue. Thus, by the resolution of the Cabinet of Ministers of Ukraine of January 13, 2023, No. 131, the Department for Combating Drug Crimes of the National Police was liquidated as a legal entity under public law^{9 Resolution of the Cabinet of Ministers of Ukraine No. 131 “On the liquidation of the territorial body of the National Police”. (2023, January). Retrieved from} https://zakon.rada.gov.ua/laws/show/131-2023-%D0%BF#Text.. Even earlier, specialised universities of the Ministry of Internal Affairs of Ukraine stopped the work of faculties that trained specialists in the field of countering drug crime. Currently, this area of training is represented only by separate academic disciplines included as variable (subject of free choice), taught by future investigators and operatives of the criminal police.

The prosecutor's office of Ukraine does not specialise in overseeing the detection and investigation of drug crimes. There is also no systematic training of prosecutors in this area of countering crime. The Prosecutor General's Office is taking certain steps to remedy this situation (for example, in 2022, the Training Centre for Prosecutors of Ukraine conducted a course on “Participation of the prosecutor in criminal proceedings regarding criminal offences in the field of drug trafficking” (Participation of the prosecutor..., 2022), but they are not systematic.

UN documents on countering drug crime have also found their direct imprint in EU regulations. Thus, Article 83 of the Treaty on the functioning of the European Union states that the European Parliament and the council, through the adoption of directives under the usual legislative procedure, are authorised to establish rules for the criminalisation of certain illegal acts and the establishment of responsibility for their commission in relation to particularly serious crimes of a cross-border nature, in particular, and those related to the illegal trafficking of narcotic drugs and psychotropic substances¹.

Based on the provisions of this norm on 25.10.2004 and on the norms of the UN Convention of 1988 Consolidated versions of the Treaty on the European Union and the Treaty on the Functioning of the European Union (2010/c 83/01). (2010, March). Retrieved from https://zakon.rada.gov.ua/laws/show/994_b06#Text United Nations Convention on Combating Illicit Traffic in Narcotic Drugs and Psychotropic Substances. (1988, December). Retrieved from https://zakon.rada.gov.ua/laws/show/995_096#Text., Framework Decision 2004/757/JHA of the Council of the European Union was adopted establishing minimum rules on the constituent elements of crimes and sanctions in the field of illicit drug trafficking Framework decision No. 2004/757 “Minimum Provisions on the Constituent Elements of Criminal Acts and Penalties in the Field of Illicit Drug Trafficking”. (2004, October). Retrieved from https://www.eumonitor.eu/9353000/1/j4nvk6yhcbpeywk_j9vvik7m1c3gyxp/ vitgbgifqmzy.. Among other things, this regulation provides for the establishment in national legislation of liability in the form of imprisonment from 5 to 10 years if the act concerned the trafficking of a significant amount of drugs or especially dangerous drugs, or if this act caused harm to the health of several persons. If the crime was committed as part of a criminal organisation, the penalty for its commission must be at least 10 years in prison. Analysis of Article 305-320 of the Criminal Code of Ukraine Criminal Code of Ukraine. (2001, April). Retrieved from https://zakon.rada.gov.ua/laws/show/2341-14#Text. suggests that this standard has been observed by the domestic legislator.

Attention is drawn to the incentive provisions of Article 5 of Framework Decision 2004/757/JHA Framework decision No. 2004/757 “Minimum Provisions on the Constituent Elements of Criminal Acts and Penalties in the Field of Illicit Drug Trafficking”. (2004, October). Retrieved from https://www.eumonitor.eu/9353000/1/j4nvk6yhcbpeywk_j9vvik7m1c3gyxp/ vitgbgifqmzy., which stipulates that the penalty can be significantly reduced in cases where the offender: refused criminal activities in the field of drug trafficking; provided law enforcement and judicial authorities with information about the preparation and commission of other drug crimes, which could not be obtained in any other way; assisted them in preventing or mitigating the consequences of the offence, or actively assisted in collecting evidence, identifying and bringing to justice other drug criminals. This provision was partially implemented in the norm of Part 4 of Article 307 of the Criminal Code of Ukraine Criminal Code of Ukraine. (2001, April). Retrieved from https://zakon.rada.gov.ua/laws/show/2341-14#Text., where it is stated that those who voluntarily handed over drugs and reported the source of their receipt (or contributed to the exposure and investigation of drug crimes) are exempt from criminal liability for their illegal production, manufacture, acquisition, storage, transportation, shipment, provided for in Part 1 of this article and Part 1 of Article 309 of this Code Ibidem, 2001..

However, the standard provided for in Article 5 of Framework Decision 2004/757/JHA Framework decision No. 2004/757 “Minimum Provisions on the Constituent Elements of Criminal Acts and Penalties in the Field of Illicit Drug Trafficking”. (2004, October). Retrieved from https://www.eumonitor.eu/9353000/1/j4nvk6yhcbpeywk_j9vvik7m1c3gyxp/ vitgbgifqmzy. deserves a wider introduction into domestic law-making and law enforcement practice. Ultimately, the legislator provided only for exemption from punishment and only in the case of committing a criminal offence (Article 309 of the Criminal Code of Ukraine Criminal Code of Ukraine. (2001, April). Retrieved from https://zakon.rada.gov.ua/laws/show/2341-14#Text.) and the least serious of the crimes provided for in Article 307 of the Criminal Code of Ukraine Ibidem, 2001.. However, for real assistance in exposing and investigating any serious and especially serious drug crimes, it would be advisable to provide for a significant reduction in the penalty, up to the application of a penalty below the lower limit provided for by the sanction of the relevant Article (part of the Article of the Criminal Code of Ukraine Criminal Code of Ukraine. (2001, April). Retrieved from https://zakon.rada.gov.ua/laws/show/2341-14#Text.). It is necessary to legally regulate the specifics of confidential cooperation of persons against whom criminal prosecution is carried out for committing drug crimes with pre-trial investigation bodies and their conclusion of cooperation agreements with the prosecutor. Thus, opportunities for persons involved in illegal drug trafficking should relate not only to the production, manufacture, purchase, storage, transportation, transfer of narcotic drugs and psychotropic substances, but also to their smuggling, use of profits from drug trafficking, cultivation of narcotic plants, etc.

World experience of prosecutor's supervision over the detection and investigation of drug crimes. The work of law enforcement agencies in different countries to identify and investigate drug crimes, and supervision of this work, is based on the norms of substantive and procedural law of specific states. Among them are the provisions of the Constitution and special laws regulating the status of the prosecutor's office, Criminal and Criminal Procedural Codes, laws and regulations establishing the procedure for conducting operational and investigative activities. It is advisable to start the analysis of these norms with those that establish criminal liability for the commission of certain drug crimes.

As for the criminal law regulation of liability for drug crimes, there is a well-established opinion in science about the division of all states of the world into three main groups: “strict policy”, “strict control” and “liberal approach” (Yarmaki, 2021; Maksymen- ko, 2022). The first group (“strict policy”) includes countries whose legislation provides for total control over drug trafficking and the most severe types and amounts of punishment for committing drug crimes (up to the death penalty). These countries include Egypt, Iran, China, Malaysia, Pakistan, the United Arab Emirates (UAE), Turkey, Singapore, Saudi Arabia, etc.

In the UAE, drug use is punishable by imprisonment, and the death penalty is provided for their distribution. The legislation does not establish a minimum amount of narcotic drugs for the possession of which criminal liability occurs. In Saudi Arabia, a person sentenced to death for drug trafficking will be beheaded (up to 40 people can be executed in a month).

The number of people who are executed annually in Iran for committing particularly serious drug crimes in some years reached 500 people (executions are usually carried out in public places).

In China, people are executed, including for illegal drug trafficking, more than worldwide (more than a thousand people a year) (From fines to the death penalty..., 2017). Article 347 of the Criminal Code of the People's Republic of China establishes a penalty of 15 years' imprisonment or life imprisonment or the death penalty for the following acts: smuggling, sale, transportation and manufacture of opium in the amount of more than 1,000 g, heroin or methylphenylamine in the amount of more than 50 g, and other drugs in large quantities; leading a group that commits smuggling, sale, transportation and manufacture of narcotic drugs; armed cover for smuggling, sale, transportation, and manufacture of drugs; resisting with the use of violence the inspection, detention and arrest of persons involved in the crime drug trafficking, under aggravating circumstances; participation in organised trade in international-level narcotic drugs (Voinova & Stanich, 2021).

The second group (“strict control”) includes countries where illegal production and sale of narcotic drugs are punishable by long terms of imprisonment, but the most severe types of criminal penalties for committing drug crimes are not applied. A wide range of general social and special criminological measures to counteract illegal drug trafficking has been introduced there, strict control over their legal production and use has been established, but the most severe types (sizes) of criminal penalties for committing drug crimes, as a rule, are not applied.

These countries traditionally include the United States, Great Britain, France, Germany, etc. However, approaches to the problem differ significantly both within this group of countries and within individual states.

Thus, in the United States, some states are criminalised not only for possession, but also for the use and attempted purchase of drugs, and in others, the use of marijuana as a drug is normalised (Alaska, California, Colorado, Hawaii, Maine, Nevada, Oregon, and Washington).

A rather tough approach to responsibility for drug crimes has been applied in New York. The terms of punishment for these criminal offences range from 1 year to life imprisonment. A person who has first committed the sale of drugs of the fifth degree is sentenced to imprisonment from 1 to 2.5 years. For selling small batches of drugs on a permanent basis, a person can face a penalty of 8 to 20 years in prison (with five years of supervision after release).

The minimum sentence for drug trafficking in Category I or II is 10 years. Persons who re-commit drug-related crimes are punished with imprisonment for a term of 12 to 20 years, and persons who are engaged in drug trafficking in large quantities - from 15 years with the possibility of life imprisonment (From fines to the death penalty..., 2017).

In general, the United States is actively countering illegal drug trafficking by federal and local law enforcement agencies. Today, in this country, one state body (Drug Enforcement Administration (DEA)) combines various functions related to countering drug trafficking, namely: prevention of drug crimes, their detection and pre-trial investigation (in particular, criminal offences related to the forceful support and corruption cover-up of illegal drug business, the use of proceeds obtained, cross-border organised drug crime, drug trafficking and drug terrorism as part of regional and international groups, violation of the rules for the legal circulation of controlled pharmaceuticals preparation of criminal cases on these crimes for consideration in court; coordination of the activities of federal and regional law enforcement agencies through the exchange of Information, joint investigations, training, creation of target groups; interaction with other states in the field of countering drug crimes, providing mutual international legal assistance; ensuring the proper supply of narcotic drugs for legitimate medical, commercial and scientific purposes; working with communities through local partnerships for the prevention of drug addiction (Bukovskyi, 2023).