International Guidelines on Human Rights and Drug Policy

8. Right to a fair trial

Everyone has the right to equality before the law and before courts and tribunals, to defend oneself against criminal charges, and to determine one’s rights and obligations in a suit at law. These and other components of the right to a fair trial should not be infringed or limited simply because an individual is accused of illicitly using, cultivating, or trading drugs.

In accordance with this right, States shall:

i. Guarantee to all persons accused of drug-related offences the right to a fair and public hearing, without undue delay, by a competent, independent, and impartial tribunal established by law, and further guarantee that all such persons will be presumed innocent until proven guilty according to the law.

ii. Ensure that such persons have access to prompt, detailed information and free, good-quality legal assistance where needed, in a language and format that is accessible. This includes access to interpreters, consular assistance (where applicable), and legal counsel to defend against criminal charges.

iii. Make provision for those convicted of such offences to have their conviction and sentence reviewed by a higher tribunal according to law.

iv. Avoid extraditing or otherwise forcibly returning or transferring a person to another State to face trial for drug-related offences where that person risks serious violations of the right to a fair trial, unless provided with credible and effective assurances regarding minimum guarantees during criminal proceedings.


The right to a fair trial is enshrined in numerous international and regional treaties and other instruments.482 It is imperative that this right and related rights not be infringed or violated in drug-related cases. Indeed, the UN General Assembly Special Session 2016 Outcome Document specifically calls on States to ‘ensure timely access to legal aid and the right to a fair trial’.483 Yet there are various ways in which fair trial standards have been eroded in the context of drug law enforcement in many jurisdictions. Examples include a lack of access to legal counsel for poor or indigent defendants, sometimes even in death penalty cases; reversed burdens of proof in some drug cases, which may undermine the presumption of innocence; and the use of military or other special courts for drug trafficking cases, which may limit the rights of defendants or introduce lessened evidentiary requirements.

Right to legal assistance

The right to counsel in criminal cases is protected by the International Covenant on Civil and Political Rights and in regional human rights systems.484 According to the UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, anyone detained for, arrested for, suspected of, or charged with a criminal offence punishable by imprisonment or the death penalty is entitled to legal aid at all stages of the criminal process and prior to interrogation.485 A person charged with a criminal offence has the right to have legal assistance assigned to them in any case ‘where the interests of justice so require’ and for free in such cases if they lack the means to pay for it.486 The gravity of the offence and the existence of an objective chance of success at the appeals stage are important factors to consider in deciding whether counsel should be assigned ‘in the interest of justice’.487 In cases involving the death penalty, the accused has a right to effective assistance of counsel at all stages of the proceedings.488 The Human Rights Committee notes that, in addition, ‘States are encouraged to provide free legal aid in other cases, for individuals who do not have sufficient means to pay for it. In some cases, they may even be obliged to do so’.489 However, where free legal services exist in theory, in practice they are often underfunded and inadequate, providing a mere veneer of access instead of substantial protection of legal rights.490 Special measures should therefore be taken to ensure meaningful access to legal aid for groups with special needs, such as minorities and those who are members of other economically and socially disadvantaged groups, including people who use drugs.491

In addition, the International Court of Justice has held that under article 36 of the Vienna Convention on Consular Relations, States that arrest, detain, or commit to custody a foreign national must promptly inform the consular post that a national of the foreign State has been detained. The State must also inform the detainee of their right to meet with the relevant consular officer regarding their detention and their right to legal representation.492 This rule applies mutatis mutandis to drug-related cases.

Burden of proof

Everyone charged with a criminal offence has the right to be presumed innocent until proven guilty according to law.493 In many jurisdictions, it is common practice to reverse the burden of proof in some types of drug cases. For example, persons arrested with a quantity of drugs exceeding certain thresholds are presumed to be trafficking, unless they can prove otherwise. Similarly, a person found in a dwelling where drugs are found is presumed to be knowingly in possession of those drugs. Domestic courts in a number of jurisdictions have raised concerns about reverse onus provisions applicable to drug cases on the basis that they violate constitutional guarantees to a presumption of innocence in criminal proceedings.494

The Human Rights Committee has raised concern about allegations that plea-bargaining systems have been used to extort money from ‘drug offenders’, a practice that takes place in the context of the criminalisation of drug use, zero-tolerance drug policies, and insufficient legal safeguards for defendants. It has recommended the reform of zero-tolerance drug policies, including by calling on States to adopt a human rights approach to drug use, with a focus on appropriate health care, psychological support, and rehabilitation, including drug dependence treatment (such as opioid substitution therapy) and harm reduction programmes.495

Right to remain silent

The right of everyone, including those charged with a criminal offence, to remain silent and not to be compelled to incriminate themselves or to confess guilt is protected by the International Covenant on Civil and Political Rights and in regional human rights systems.496 The Human Rights Committee has noted that these safeguards ‘must be understood in terms of the absence of any direct or indirect physical or undue psychological pressure from the investigating authorities on the accused, with a view to obtaining a confession of guilt’ and that it is thus unacceptable to use torture or ill-treatment to extract a confession. The Committee therefore advises States to ensure that their domestic law excludes from evidence statements or confessions obtained through torture or ill-treatment and further notes that States have the burden to prove that statements by the accused have been given of their own free will.497 The UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems recommend that States introduce measures to promptly inform every person detained for, arrested for, suspected or accused of, or charged with a criminal offence of their right to remain silent.498

Special courts

Some countries have used military tribunals or other types of special courts to try drug cases, particularly drug trafficking cases.499 However, the jurisprudence and general comments of human rights treaty bodies, as well comments by Special Rapporteurs, make clear that trials of civilians in military courts should be exceptional.500

According to the Human Rights Committee, trials of civilians in military courts should be ‘limited to cases where the State party can show that resorting to such trials is necessary and justified by objective and serious reasons, and where, with regard to the specific class of individuals and offences at issue the regular civilian courts are unable to undertake the trials’.501 In such trials, fair trial guarantees ‘cannot be limited or modified because of the military or special character of the court concerned’.502 In this regard, the Special Rapporteur on the independence of judges and lawyers has concluded that the trial of civilians in military tribunals ‘should be limited strictly to exceptional cases concerning civilians assimilated to military personnel by virtue of their function and/or geographical presence who have allegedly perpetrated an offence outside the territory of the State and where regular courts, whether local or those of the State of origin, are unable to undertake the trial’.503 The Working Group on Arbitrary Detention has specifically recommended that States ‘[e]nsure that military authorities are not, in principle, involved in drug enforcement activities’.504

Otherwise, military court jurisdiction should be limited to military personnel who have committed military offences or breaches of military discipline and only when those offences or breaches do not amount to serious human rights violations. Ordinary courts should thus have sole jurisdiction over cases involving alleged human rights violations by military personnel, and military courts should not have jurisdiction over civilian cases.505 The Human Rights Committee and the Committee against Torture have recommended that States remove the power to exercise jurisdiction over civilians from military courts ‘without further delay’506 and – along with the Committee against Torture, the Special Rapporteur on the independence of judges and lawyers, the Special Rapporteur on the promotion of truth, justice, reparation, and guarantees of non-recurrence, and the Special Rapporteur on violence against women – that they take measures, including through the adoption or amendment of legislation, to preclude the possibility that military courts could have jurisdiction over cases involving human rights violations and offences against civilians in which military personnel are involved and to guarantee that the investigation and jurisdiction of cases involving gross violations of human rights, including those with the alleged involvement of military and security forces, are investigated and prosecuted under the ordinary civilian justice system.507

In some jurisdictions, ‘drug treatment courts’ or ‘drug courts’ are presented as an alternative to incarceration and are meant to offer court-supervised treatment for drug dependence for people who would otherwise go to prison for a drug-related offence. The Special Rapporteurs on the right to health and on the independence of judges and lawyers have raised concerns that the delivery of essential health care through the justice system – whereby judges and others who are not trained medical personnel make health care decisions – raises several human rights concerns, including with respect to procedural due process, informed consent, patient confidentiality and autonomy, and privacy.508 In this context, they have recommended that States take cautions against the continued rollout of drug courts in countries where oversight and monitoring mechanisms are absent.509 Several members of the UN Working Group on Arbitrary Detention have similarly highlighted reservations about respect to the right to fair trial in proceedings before drug courts.510 The Office of the UN High Commissioner for Human Rights has also raised concern that human rights violations in the drug court system were exacerbated by racial and gender biases.511

Undue delay

Where arrested persons are subjected to long periods of pre-trial detention, this affects their right to a fair trial without ‘undue delay’.512 The UN Working Group on Arbitrary Detention has found that people who use drugs are particularly at risk in this regard.513 Some States reportedly provide for the automatic pre-trial detention of persons arrested for drug use, even though the Inter-American Commission on Human Rights has declared this practice incompatible with human rights law.514

In addition, where pre-trial detainees are housed in poor or overcrowded conditions that fail to meet minimum basic custodial standards,515 this may violate fair trial rights by undermining the principle of equality of arms. According to the UN Working Group on Arbitrary Detention, ‘[a] detainee who has to endure detention conditions that affect their health, safety or well-being is participating in the proceedings in less favourable conditions than the prosecution … Where conditions of detention are so inadequate as to seriously weaken the pre-trial detainee and thereby impair equality, a fair trial is no longer ensured’.516


Depending on the circumstances, extradition to face trial for drug offences may be refused where serious violations of fair trial rights are anticipated in the requesting State. In particular, extradition shall not be granted ‘if the person whose extradition is requested has not received or would not receive the minimum guarantees in criminal proceedings’.517 It may also be refused where the person whose extradition is requested ‘had suffered or risked suffering a flagrant denial of a fair trial in the requesting country’,518 such as the risk that evidence obtained through torture would be admitted in a criminal trial; a conviction in absentia with no possibility of fresh determination of the merits of the charge; a summary trial conducted with total disregard for the defendant’s rights; detention without access to an independent and impartial tribunal to review the legality of the detention; and the deliberate, systematic refusal of access to a lawyer.519

Assurances may be provided by the requesting State to overcome barriers to extradition posed by the risk of serious violations of fair trial rights. These may be acceptable only if, in the circumstances, they constitute a suitable means to eliminate the danger to the individual concerned and are considered by the requested State to be reliable and given in good faith.520 Acceptable examples include assurances that the person being sought, if they have been convicted in the requesting State in absentia, will have the opportunity upon surrender to have the case retried in their presence; and assurances that the person being sought, if liable to be tried or sentenced in the requesting State by an extraordinary court or tribunal, will receive a judgement by an independent and impartial court that is generally empowered under the rules of judicial administration to pronounce on criminal matters.

Relationship to the UN drug control conventions

Over time, the use of criminal law, policing, and courts has become a primary tool of drug control. This is reflected in the adoption and implementation of the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, which codifies the expanded application of criminal law for this purpose.521 In this context, increased numbers of criminal convictions are often considered indicators of successful drug control efforts and treaty compliance at the country level. This requires careful attention to simultaneous human rights obligations relating to fair trial standards, which are not addressed in detail in the 1988 Convention.