International Guidelines on Human Rights and Drug Policy

7. Freedom from arbitrary arrest and detention

Everyone has the right to liberty and security of the person and therefore to freedom from arbitrary arrest and detention. No one shall be deprived of liberty except on such grounds and in accordance with such procedures as are established by law. Such rights apply equally to any person known to have used drugs or suspected of drug use, as well as to anyone suspected of a drug-related offence.

In accordance with this right, States shall:

i. Ensure that people are not detained solely on the basis of drug use or drug dependence.

ii. Ensure that pre-trial detention is never mandatory for drug-related charges and is imposed only in exceptional circumstances where such detention is deemed reasonable, necessary, and proportional.

In addition, States should:

iii. Guarantee that people arrested, detained, or convicted for drug-related offences can benefit from the application of non- custodial measures – such as bail or other alternatives to pre-trial detention; sentence reduction or suspension; parole; and pardon or amnesty – enjoyed by those who are arrested, detained, or convicted of other crimes.

iv. Prioritise diversion from prosecution for persons arrested for drug offences or drug-related offences of a minor nature.

v. Prioritise non-custodial measures at the sentencing and post-sentencing stages for persons charged with or convicted of drug offences or drug-related offences of a minor nature.

vi. Ensure that, where treatment is court mandated, no penalties attach to a failure to complete such treatment.

vii. Ensure that treatment for drug dependence as an alternative to incarceration is undertaken only with informed consent and where medically indicated, and under no circumstances extends beyond the period of the applicable criminal sentence.

viii. Take immediate measures to close compulsory drug detention centres where they exist, release people detained in such centres, and replace such facilities with voluntary, evidence-based care and support in the community.


The prohibition on arbitrary detention, including in administrative settings, is a rule of customary international law and a peremptory norm of international law.406 Safeguards to protect the right to liberty and security of the person must apply to all detention by official action or pursuant to official authorisation, including involuntary hospitalisation, detention for vagrancy or drug dependence, and other forms of administrative detention.407 The right to liberty requires States to impose limits on imprisonment and other forms of deprivation of liberty.408 Accordingly, detention should be used only as a measure of last resort and for the shortest possible period of time,409 and alternatives to detention should be encouraged.410 Grounds for arrest or detention must be prescribed by law and defined with sufficient precision to avoid overly broad or arbitrary interpretation or application; otherwise, arrest or detention is unlawful.411 Detention, even if it has a basis in law, may constitute arbitrary detention where it is random, capricious, or disproportionate – that is, not reasonable or necessary given the circumstances of the case.412 The State Party concerned has the burden to show that detention is reasonable and necessary.413

Any individual deprived of liberty in any form – including for the purposes of criminal proceedings, administrative detention, involuntary confinement in medical facilities, and detention for ‘treatment for drug use – has the right to bring proceedings before a court to challenge the arbitrariness and lawfulness of the detention and to receive appropriate and accessible remedies without delay.414 States must adopt specific measures to guarantee access to these rights to certain groups of detainees, including women, children, indigenous peoples, people who use drugs, and people living with HIV.415 States’ drug-related policies should not permit restrictions on the safeguards of persons deprived of their liberty regarding the right to bring proceedings before a court.416

The presumption of innocence – whereby a person is presumed innocent until found otherwise by a competent court – is a fundamental principle of international human rights law. In accordance with this principle, pre-trial detention should be used as a last resort only.417


International law requires that anyone who is arrested be informed, at the time of arrest, of the reasons for their arrest; promptly informed of any charges against them; and brought promptly before a judge to determine whether the arrest was lawful.418 The Human Rights Committee has interpreted the requirement to be brought ‘promptly’ before a judge to mean a few days from the arrest, with 48 hours ordinarily being sufficient.419 The Committee has also stated that the individual has the right to legal assistance by the counsel of their choice in the hearing that ensues and in subsequent hearings where the judge assesses the legality of detention.420

The UN Working Group on Arbitrary Detention has raised concern about legislation permitting the drug testing of people arrested on suspicion of consuming illegal drugs and permitting detention in case of refusal to provide a blood or urine sample.421 The Working Group has also raised concern about detainees who had been under the influence of drugs or alcohol at the time of arrest or interrogation, casting doubt on their capacity to understand their rights, particularly in the absence of legal representation or family members.422 It has recommended that legislation be amended to require that drug testing be undertaken only with a warrant approved by a judicial officer and that standard operation procedures or other policies be developed to ensure that detainees are not interviewed or interrogated while they are suspected to be, or are, under the influence of drugs or alcohol; that detainees are given access to effective medical treatment to address withdrawal symptoms in detention; and that safeguards against arbitrary detention apply to all detainees, including those arrested, detained, or charged for drug-related offences.423

The Subcommittee on Prevention of Torture has raised concern that the practice of rewarding police by providing financial compensation for each arrest may lead to arbitrary arrests and arbitrary and unlawful detention and may increase the risk that authorities will mistreat detainees in order to obtain confessions that corroborate or demonstrate the supposed efficiency of the police.424 It has thus urged that such practices be eradicated.425 The Working Group on Arbitrary Detention has raised concern about State failure to register or promptly bring before a judge people detained for drug-related offences,426 who may be kept in custody without charge longer than others arrested for other offences and that people who use drugs may be easy targets for arrest for law enforcement officials needing to meet arrest quotas.427 The Office of the UN High Commissioner on Human Rights has raised concern that in some countries, people arrested for drug-related offences are not registered or promptly brought before a judge and could be kept in custody without being charged for substantially longer than those detained for other offences.428 It has also noted that in some countries, police are reported to have targeted drug users to meet arrest quotas.429

Detention based on actual or suspected drug use or dependence

In certain jurisdictions, people who use drugs may be subjected to administrative detention ‘without the benefit of sufficient due process, legal safeguards or judicial review’.430 However, drug use or drug dependence alone are not sufficient grounds for detention.431 Compulsory detention to control or treat people who illicitly use drugs is unsupported by scientific evidence, is considered a form of arbitrary detention, and places individuals at risk of torture and cruel, inhuman, and degrading treatment, as well as numerous other human rights violations.432 The UN Working Group on Arbitrary Detention has raised concern about the frequent use of administrative detention as a means of controlling people who use drugs, particularly when such detention is framed as a health intervention.433 It has noted that some States have incorporated such detention into national legislation based on the perception that drug use in and of itself endangers the lives of people who use drugs and the lives of others. This amounts to administrative detention based on perceived health grounds and can lead to involuntary commitment or compulsory drug dependence treatment that is inconsistent with international human rights law. It may also be contrary to medical ethics, particularly when dependence is not present and hence such treatment is not clinically indicated. The Working Group has raised particular concern about the compulsory detention of people suspected of using drugs434 and has concluded that compulsory detention regimes using confinement or forced labour for the purposes of ‘treatment’ or ‘rehabilitation’ are contrary to scientific evidence and inherently arbitrary.435 It has also recommended that all persons deprived of their liberty on health grounds have judicial means of challenging their detention.436

Other Special Procedures, including the Special Rapporteur on torture437 and the Special Rapporteur on the right to health,438 as well as treaty bodies, including the Committee on the Rights of the Child439 and the Committee against Torture,440 have raised concerns about detention as a form of drug treatment.

The Human Rights Committee has raised concern about arbitrary arrest and detention without due process,441 as well as compulsory detoxification treatment, forced labour, inadequate medical care, and onerous work conditions in drug detention centres.442 It has called for a comprehensive review of relevant laws, policies, and practices vis-à-vis drug-dependent individuals to ensure alignment with the International Covenant on Civil and Political Rights and for the introduction of effective mechanisms, with formal authority, to decide on complaints brought by people deprived of their liberty in compulsory drug detention centres.443

The Committee against Torture has raised concern about the detention of people who use drugs in manual ‘labour treatment facilities’, where people are detained without access to a lawyer or appropriate medical care, has highlighted the situation of women detainees’ lack of access to medical care, including gynaecologists, and has urged that all forms of ‘treatment through labour’ be abolished.444 The Committee has also raised concern about involuntary administration detention in ‘transit’ and ‘rehabilitation’ centres, where people suspected of ‘drug addiction’ face arbitrary detention for prolonged periods of time without due process.445 The Committee has called for the release of detainees, prioritising the use of community-based or alternative social services for people with drug dependence, for investigation and prosecution of allegations of illegal detention and ill-treatment, and for adequate redress for people who have been arbitrarily detained in these facilities and for their families.446

Pre-trial detention and sentencing, alternatives to custody, and punishment reduction

The routine use of pre-trial detention for persons suspected of drug offences contravenes the presumption of innocence and may also amount to arbitrary detention.447 Yet in some States, judges are obliged to impose pre-trial detention or mandatory minimum sentences when convicting individuals of drug-related offences, including for the use or possession of small amounts of drugs, even where such deprivation of liberty is strictly limited for other crimes.448 The Human Rights Committee has expressed concern about the high number of persons in pre-trial detention, the duration of which is excessive in many instances, particularly for drug-related cases, and the fact that bail is not allowed for persons arrested or held in custody for drug-related offences. The Committee has recommended that States amend their legislation to deduct the time already served in pre-trial detention from imposed sentences; guarantee that judges are authorised to decide whether to release a subject on bail; and render the payment of bail affordable to a larger number of detainees.449 The Committee against Torture has raised concern about the number of illegal arrests for drug-related crimes and the lengthy periods of detention for such crimes. It has recommended that States adopt safeguards to ensure the justification for arrests and detention, provide training on these issues to law enforcement and the judiciary, and strengthen efforts to promote alternative and non-custodial measures to reduce the number and length of pretrial detentions. In this context, the Committee has also reminded States that pretrial detention should be used only as a last resort, in exceptional circumstances, for a limited time and in accordance with the Tokyo Rules.450 The Inter-American Commission on Human Rights has raised concern regarding State policies that provide for the automatic pre-trial detention of people arrested for the consumption and possession of drugs for personal use, a practice incompatible with the American Convention on Human Rights.451 The Working Group on Arbitrary Detention has raised concern about the mandatory pretrial detention of people charged with drug-related offences, noting that mandatory pretrial detention is incompatible with human rights law – which requires an individualised judicial determination regarding whether pretrial detention is reasonable and necessary – and thus cannot be justified for any offence.452

The UN Working Group on Arbitrary Detention has likewise raised concern about laws denying bail for those prosecuted for offences involving drug use or sale and has recommended that such laws be revised.453 It has also raised concern that ‘in legal systems where pretrial detention is ultimately linked to bail, poverty and social marginalization appear to disproportionately affect the prospects of persons chosen to be released pending trial’.454 This is because bail courts factor whether an accused person has ‘roots in the community’ – stable residence, financial situation, and employment, as well as being able to deposit cash or post-bond as a guarantee for appearance at trial – into their decision whether to release the person on bail. As the Working Group has noted, these criteria are often difficult to meet for poor and marginalised people, including people who use drugs;455 and because defendants not detained pending trial have significantly better chances of being acquitted than do those detained pending trial, the bail system exacerbates the disadvantages that poor and marginalised people face in enjoying the right to a fair trial.456 People who cannot afford to pay bail may also plead guilty, especially on minor drug charges, so they can be released from detention.457

The Working Group has thus recommended that countries pursue and expand efforts to find innovative alternatives to detention on remand of accused people who lack ‘strong roots in the community’ and that they make available additional resources to cover unmet needs for legal aid in the criminal justice system.458

After conviction, sentences for drug-related offences should be proportionate to the nature of the crime,459 with attention to a person’s rehabilitative needs460 and alternatives to detention.461 The UN Working Group on Arbitrary Detention has raised concern about the disproportionate severity of penalties for offences relating to the sale and use of narcotics, noting that in practice, legislation geared towards combating international drug trafficking primarily is used to punish people who use drugs and small-scale traffickers, who are often from the poorest, most vulnerable communities, and that women, in particular mothers and housewives, are disproportionately affected by anti-drug legislation.462

The Special Rapporteur on the independence of judges and lawyers has likewise raised concern about disproportionate sentences for ‘drug-abuse-related cases’ and their harsh impact on young offenders and has called for the international community, including relevant UN agencies, to provide financial and technical support to establish rehabilitation programs for people convicted of drug use.463

The Human Rights Committee has raised concern about legislation categorically excluding people arrested or held in custody for drug sales from eligibility for bail and has recommended that such legislation be reviewed to enable judges to make case-by-case assessments on the basis of the offence committed.464 The UN Working Group on Arbitrary Detention has raised concern about legislation barring those convicted of drug offences from sentence reduction, suspension, early release or parole, and pardons or amnesties, noting that such proscriptions can be disproportionate compared to those for other offences.465 The Working Group has recommended that such legislation be amended to conform to international standards, including to permit the application of suspended or reduced sentences, parole, pardon, and amnesty.466

The Committee on Economic, Social and Cultural Rights has raised concern that excessive fines imposed on people who use drugs amount to de facto criminalisation because many people who use drugs cannot afford the fine and end up in prison.467 The UN Working Group on Arbitrary Detention has raised concern about the impact of exorbitant fines for drug trafficking that effectively increase imprisonment for those unable to pay and has recommended that fines be set in accordance with the economic capacity, property status, or income of the person being sentenced.468

The Special Rapporteur on torture has raised concern about draconian laws imposing lengthy sentences for drug offences and has recommended that States review criminal legislation and sentencing policies with a view toward reducing lengthy sentences for drug offences and allowing for the provision of drug treatment as an alternative to imprisonment or punishment.469 The UN Working Group on Arbitrary Detention has determined that when treatment for drug dependence is undertaken as an alternative to incarceration, under no circumstances may it extend beyond the period of the criminal sentence.470 States must also guarantee that treatment for drug dependence as an alternative to incarceration is undertaken only with the free and informed consent of the person involved, which includes the right to refuse or withdraw from treatment without penalty.471 Such treatment must also be medically indicated, non-coercive, and tailored to the needs of the individual.472

The Working Group has also raised concern about the lack of judicial safeguards for people detained for offences related to personal drug use and disproportionate sentences for such offences.473 It has recommended that States ensure that drug consumption is decriminalised in order to avoid arbitrary detention and that the involuntary confinement of those who use or are suspected of using drugs be eradicated in law and in practice.474 It has also recommended that all persons deprived of liberty on health grounds, including people with drug dependence, have judicial means of challenging their detention.475

Moreover, in some States, people who are dependent on drugs can be denied their right to legal capacity and involuntarily detained for treatment on this basis. For example, the Committee on the Rights of Persons with Disabilities has raised concern about legislation that ‘permits involuntary detention for people with “mental health problems”’, which may include those ‘with a “perceived disability”’, such as ‘“persons with a drug or alcohol dependence”’.476 In such jurisdictions, if drug dependence is considered in law to be included within the definition of ‘a disability’, at least for the purposes of anti-discrimination law, the Convention on the Rights of Persons with Disabilities may add further protection against discriminatory detention on this basis.

Relationship to the UN drug control conventions

Each of the three international drug control conventions encourages, and in some instances requires, States to criminalise drug-related conduct other than that necessary for medical and scientific use and to impose penalties, including imprisonment or other deprivations of liberty, for at least some of this conduct.477 The conventions also specify that States may adopt more ‘strict or severe’ measures of control than those provided, if such measures are necessary or desirable to protect public health or welfare478 or to ‘suppress[] illicit traffic’,479 thus setting a floor, but not a ceiling, for such measures. However, the drug control conventions also allow for alternatives to conviction or punishment – such as education and treatment – for personal consumption-related offences and other drug offences ‘in appropriate cases of a minor nature’.480 States Parties therefore have discretion with regard to those cases. This is also reflected in the UN General Assembly Special Session 2016 Outcome Document.481 When implementing these provisions, however, States should ensure simultaneous compliance with their human rights obligations in relation to arrest and detention and their alternatives.