Universal human dignity is a fundamental principle of human rights. It is from the inherent dignity of the human person that our rights derive. No drug law, policy, or practice should have the effect of undermining or violating the dignity of any person or group of persons.
The Universal Declaration of Human Rights provides that ‘the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’.[4] ‘Dignity lends real meaning to human rights, and as such is inherent in any right protected by international human rights law’. [5]
Human rights are universal, inalienable, indivisible, interdependent, and interrelated, including in the contexts of drug policy, development assistance, health care, and criminal justice.
A person’s involvement in drug-related criminality affects the enjoyment of some rights and specifically engages others. In no case are human rights entirely forfeited.
The Universal Declaration of Human Rights is based on an understanding that human rights are grounded in the inherent dignity of the human person and are therefore universal and inalienable. This means that irrespective of ethnicity, gender, social or other status, or lifestyle choice, ‘all human beings are born free and equal in dignity and rights’[6] and no one’s human rights can be taken away (some rights may be limited in certain circumstances, but this is quite different from those rights being removed; see Section V.2).
Human rights are also indivisible, interdependent, and interrelated.[7] ‘Indivisible’ means that all human rights – economic, social, cultural, political, and civil rights – must be treated equally, on the same footing, with the same emphasis. ‘Interdependent’ and ‘interrelated’ mean that the realisation of a given human right is closely related to and dependent on other human rights. For example, the obligation to ensure access to essential controlled medicines, such as methadone or buprenorphine to treat opioid dependence or antiretroviral therapy to treat HIV, is a core obligation of the right to health, which means that it must be guaranteed without delay.[8] Yet a number of factors, such as stigma, discrimination, and violence, often prevent people who use drugs from accessing these lifesaving medicines or even information about them.[9] In this context, ensuring the right to health is closely related to and dependent on the realisation of a number of other rights, including the rights to human dignity, non-discrimination, equality, freedom from torture and ill-treatment, privacy, and information.[10]
Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), art. 1.
Vienna Declaration and Programme of Action, World Conference on Human Rights, Vienna, 14–25 June 1993, UN Doc. A/CONF.157/24 (Part I) (1993), para. 5.
Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), para. 43
See Committee on Economic, Social and Cultural Rights, Concluding Observations: Bulgaria, UN Doc. E/C.12/BGR/CO/6 (2019), para. 46; Committee on Economic, Social and Cultural Rights, Concluding Observations: Mauritius, UN Doc. E/C.12/MUS/CO/5 (2019), para. 53; Committee on Economic, Social and Cultural Rights, Concluding Observations: Estonia, UN Doc. E/C.12/EST/CO/3 (2019), paras. 44(a), 46
See Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), para. 3; see also Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, UN Doc. A/HRC/10/44 (2009), para. 74(e).
Everyone has the inherent right to life. This right must be protected by law. No one shall be arbitrarily deprived of their life based on actual or perceived drug use or involvement in the illicit drug trade. Drug offences do not meet the internationally recognised threshold of ‘most serious crimes’ for which the death penalty – where it exists – may be imposed.
In accordance with this right, States shall:
i. Take immediate action to halt executions, commute death sentences, and abolish the death penalty for drug offences. States may not transform an offence from a non-capital one to a capital one nor expand penalties for existing offences to include the death penalty.
ii. Take measures to prevent both State-perpetrated and private violence, threats to life, and unnecessary or disproportionate use of potentially lethal force based on actual or perceived drug use or involvement in the illicit drug trade, and investigate, prosecute, and hold accountable those responsible for such acts.
iii. Avoid extraditing or otherwise forcibly returning or transferring a person to another State where that person risks being sentenced to the death penalty for drug offences, unless provided with credible and effective assurances that the death penalty will not be imposed.
iv. Avoid extraditing or otherwise forcibly returning or transferring a person to another State where there are substantial grounds to believe that, based on actual or perceived drug use or involvement in the illicit drug trade, the person risks arbitrary deprivation of their right to life, including by non-State actors over whom the receiving State has no or only partial control or whose acts the receiving State cannot prevent.
In addition, States should:
v. Take steps to ensure that they do not aid or assist in the imposition of the death penalty outside of their jurisdiction and that the supply of equipment, personnel, training, and funding for drug law enforcement activities by or in another State, mutual legal assistance between States, and joint operations with other States do not contribute, directly or indirectly, to the imposition of the death penalty.
vi. Take positive measures to increase the life expectancy of people who use drugs, including adequate steps to provide scientific, evidence-based information, facilities, goods, and services on drug use prevention, overdose prevention and response, and harm reduction, including to reduce such harms as overdose, HIV, viral hepatitis, and other infections and injuries sometimes associated with drug use.
The right to life is recognised in many international and regional treaties and instruments.[301] No derogation of the right to life is permitted, even during armed conflict or public emergencies that threaten the life of a nation.[302] The prohibition on the arbitrary deprivation of life is a rule of customary international law and a peremptory, or jus cogens, norm,[303] which means that the obligation to uphold it extends to all States, regardless of treaty ratification.
Arbitrary deprivation of life: Extrajudicial, summary, and arbitrary executions
The deprivation of life is, as a rule, arbitrary if it is inconsistent with international law or domestic law.[304] The Human Rights Committee has explained that a deprivation of life may still be arbitrary even if authorised by domestic law. The notion of ‘arbitrariness’ is not to be fully equated with ‘against the law’; rather, it must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability, and due process of law,[305] as well as elements of reasonableness, necessity, and proportionality.
The duty to protect the right to life ‘by law’ requires that States take all necessary measures to prevent arbitrary deprivations of life by law enforcement officials, including soldiers charged with law enforcement measures and those empowered or authorised by the State to use potentially lethal force.[306] These measures include enacting an adequate domestic legal framework for the use of force by State actors; procedures to ensure that law enforcement actions are planned to minimise the risk to human life; mandatory reporting, review, and investigation of lethal and other life-threatening incidents; and the supplying of ‘less-lethal’ means and adequate protective equipment to obviate the need to resort to lethal force.[307] Law enforcement officials should be trained and bound by relevant international standards, including the UN Code of Conduct for Law Enforcement Officials and the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.[308]
States are under an obligation to rigorously limit and strictly and effectively monitor the use of force by private individuals and entities empowered or authorised to use potentially lethal force. They are responsible for such individuals’ or entities’ failure to comply with obligations under the right to life and must ensure that victims of the arbitrary deprivation of life by such individuals or entities are granted an effective remedy.[309] States also have a responsibility to address ‘attitudes or conditions within society which encourage or facilitate’ violence or killings committed by non-State actors, including killings of members of minority groups and the social cleansing of ‘undesirables’.[310]
The Human Rights Committee, the Committee on Economic, Social and Cultural Rights, several Special Rapporteurs, and the High Commissioner for Human Rights have all expressed concern about extrajudicial executions by police and armed forces carried out in the course of drug law enforcement activities and about the impunity of perpetrators of such unlawful killings, calling for investigations and for perpetrators to be brought to justice.[311] In some countries, high-ranking government officials have ordered or indirectly encouraged police or the military to ‘shoot to kill’ to combat the trade and use of drugs, a concern that has been raised by the Committee on Economic, Social and Cultural Rights and the Special Rapporteur on extrajudicial, summary, or arbitrary executions.[312]
The use of potentially lethal force for law enforcement purposes is an extreme measure,[313] which should be resorted to only when strictly necessary in order to protect life or prevent serious injury from an imminent threat.[314] The intentional taking of life by any means is permissible only if it is strictly necessary in order to protect life from an imminent threat.[315] The primary purpose of the ‘protect life’ principle is to save life. Accordingly, lethal force may not be used intentionally merely to protect law and order or other similar interests, such as to disperse protests or safeguard property interests.[316] When armed forces participate in law enforcement efforts, including anti-drug operations, they should be trained and bound by international standards on the use of force, in particular the UN Code of Conduct for Law Enforcement Officials and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.[317] They must also be provided with all necessary instructions, training, and equipment to enable them to act with full respect for this legal framework.[318] The Inter-American Court of Human Rights has elaborated upon the obligations of States to restrict the use of armed forces for law enforcement purposes in the context of the ‘war on drugs’, affirming that the maintenance of public order and citizen security is a function reserved primarily for civilian police forces and further emphasising that security forces’ intervention should be exceptional, temporary, and restricted to what is strictly necessary in the circumstances of the case; subordinate and complementary to civil control; subject to human rights law and standards on the use of force and provided with the necessary training to act in full respect of such standards; and overseen by competent, independent, and technically capable civilian bodies.
The International Narcotics Control Board and the executive director of the UN Office on Drugs and Crime have also condemned the practice of extrajudicial executions as a violation of fundamental rights and a clear violation of the international drug conventions.[319] The International Narcotics Board has highlighted that the drug conventions, in line with international human rights law, require that suspected drug-related criminality be addressed through formal criminal justice responses, in accordance with the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and internationally recognised due process standards and has appealed to States to act in accordance with these international standards.[320]
The Minnesota Protocol on the Investigation of Potentially Unlawful Death provides additional guidance regarding international norms on the prevention and investigation of extra-legal, arbitrary, and summary executions.[321]
Extradition and other forcible return or transfer
The duty to respect and ensure the right to life requires States to refrain from extraditing, deporting, or otherwise transferring individuals to countries in which there are substantial grounds for believing that these persons risk being deprived of their life in violation of international guarantees of this right.[322]
All three UN drug control conventions include provisions on extradition.[323] They also include safeguard clauses specifying that the relevant obligations are subject to domestic and constitutional law[324] and permitting States to refuse to comply with extradition requests ‘where there are substantial grounds leading its judicial or other competent authorities to believe that compliance would facilitate the prosecution or punishment of any person on account of his race, religion, nationality or political opinions, or would cause prejudice for any of those reasons to any person affected by the request’.[325] Not only do international human rights treaties provide stronger human rights protection than this, but so too do many national laws, constitutions, and bilateral treaties. The drug control conventions explicitly state that extradition is subject to these obligations.[326]
In certain circumstances, diplomatic assurances provided by the requesting State can resolve issues relating to human rights considerations in the extradition process. However, such assurances may be relied upon only if they are a suitable means to eliminate the danger to the individual concerned and only if the requested State actually considers them reliable.[327] Diplomatic assurances should not be used to undermine the principle of non-refoulement.[328] With regard to the death penalty, assurances may be related to the formal legal process and therefore monitored. However, extradition to a country with a mandatory death penalty for the relevant offence raises questions about the reliability of any assurances, as there is a lack of judicial discretion in sentencing. Moreover, assurances where the State cannot control non-State actors, the military, or others from violating an individual’s right to life are similarly unreliable.[329]
The Special Rapporteur on extrajudicial, summary, or arbitrary executions recommends that States amend national laws on extradition and deportation to specifically prohibit the forced transfer of persons to States where there is a genuine risk that the death penalty may be imposed in violation of internationally recognised standards, unless adequate assurances are obtained.[330]
Protecting and promoting health to preserve life
The Human Rights Committee has explained that the ‘right to life is a right which should not be interpreted narrowly’ and that governments ‘should take appropriate measures to address the general conditions in society that may give rise to direct threats to life or prevent individuals from enjoying their right to life with dignity’, including ‘degradation of the environment, deprivation of land, territories and resources of indigenous peoples, extensive substance abuse [and] the prevalence of life threatening diseases, such as AIDS’.[331] Protecting the right to life requires measures to ensure access without delay to essential goods and services that may be essential to life, including health care.[332] This obligation thus interacts and is linked with obligations under the right to health, such as the provision in the International Covenant on Economic, Social and Cultural Rights directing governments to take steps ‘necessary for … the prevention, treatment and control of epidemic … diseases’, which include those that particularly affect people who use drugs, such as HIV and viral hepatitis. This also means that protecting the right to life requires measures to ensure access without delay to certain goods and services that may be essential to life, including health care.[333] This includes ensuring access to the full range of harm reduction services as outlined by the World Health Organization and to overdose prevention, in addition to removing barriers to such services, including law enforcement practices and criminalisation, in order to reduce rates of HIV and hepatitis infection.
For example, the International Narcotics Control Board has noted that the operation of supervised injection sites is consistent with the drug conventions, citing evidence that such facilities have proven effective in protecting the health and lives of marginalised people who use drugs, and public health more generally, without increasing drug use or drug trafficking.[334] The Board has emphasised that the ‘ultimate objective [of such sites] should be to reduce the adverse consequences of drug abuse without condoning or encouraging drug use and trafficking’.[335] To this end, the Board has called on States to ensure that these facilities ‘provide or refer patients to treatment, rehabilitation and social reintegration services … [which] must not be a substitute for demand reduction programs’.[336] The Supreme Court of Canada has ruled that the denial of an exemption to criminal prohibitions on drug possession in order to permit the operation of a supervised injection site without risk of criminal prosecution impermissibly violates the constitutional rights of people with drug dependence, namely their rights to life, liberty, and security of the person.[337]
Death penalty
Under international law, the death penalty, when used, is restricted to the ‘most serious crimes’,[338] which ‘appertain only to crimes of extreme gravity, involving intentional killing’.[339] Drug offences cannot serve as the basis for the death penalty,[340] and mandatory death sentences are prohibited.[341] States must review their criminal laws to ensure that the death penalty is not imposed for crimes not qualifying as ‘most serious crimes’. They should revoke death sentences issued, and resentence those convicted, for such crimes.[342]
The International Covenant on Civil and Political Rights also imposes an absolute prohibition on the death penalty for pregnant women. Both the International Covenant and the Convention on the Rights of the Child impose an absolute prohibition on the death penalty for offences committed by persons under 18 years of age.[343] The Human Rights Committee has further concluded that States must refrain from imposing the death penalty on people who face special barriers in defending themselves on an equal basis as others, such as people whose serious psychosocial and intellectual disabilities impede their effective defence.[344] The Committee recommends that States refrain from executing people who have a diminished ability to understand the reasons for their sentence and persons whose execution would be exceptionally cruel or would lead to exceptionally harsh results for their families (such as where the person in question has suffered serious human rights violations or is the parent of very young or dependent children).[345] In considering alternative sentencing, the Convention on the Rights of the Child also prohibits minors’ imprisonment without the possibility of release.[346]
In addition, States have a duty to take measures to ensure that the death penalty is never imposed in an unlawful or discriminatory manner. Where the death penalty is pursued or imposed disproportionately against religious, racial, or ethnic minorities; indigenous groups; foreign nationals; indigent persons; LGBTI persons; groups based on their political or other opinions; or any other ‘other status’ groups against which discrimination is prohibited (such as people who use drugs), this may constitute discriminatory application of the death penalty.[347] The General Assembly has urged States to ensure that the death penalty is not applied on the basis of discriminatory laws or as a result of discriminatory or arbitrary application of the law.[348]
The Human Rights Committee emphasises that States can never impose the death penalty for an offence for which such punishment was not provided by law at the time of the act’s commission, but notes that they should apply the abolition of the death penalty retroactively to people already charged with or convicted of a capital offence.[349] Moreover, ‘States parties to the [International Covenant on Civil and Political Rights] who have abolished the death penalty by amending their domestic laws, becoming parties to the Second Optional Protocol … or adopting another international instrument obligating them to abolish the death penalty are barred from reintroducing it’.[350] The Committee has also stated that serious procedural flaws, such as the failure to promptly inform detained foreign nationals of their right to consular notification pursuant to the Vienna Convention on Consular Relations and the failure to afford individuals about to be deported to a country in which their lives are claimed to be at real risk with the opportunity to avail themselves of available appeal procedures, may render the imposition of the death penalty in violation of the Covenant.[351]
States should also take steps to ensure that they do not aid or assist in the imposition of the death penalty outside of their jurisdiction and that the supply of equipment, personnel, training, and funding for drug law enforcement activities by or in another State, mutual legal assistance between States, and joint operations with other States in relation to drug control do not contribute, directly or indirectly, to the imposition of the death penalty. In this respect, the Special Rapporteur on extrajudicial, summary, or arbitrary executions has raised concern that international cooperation on criminal and other matters – such as the provision of mutual legal, material, financial, or technical assistance between States, State contributions to multilateral assistance programmes, and the transfer of persons from abolitionist to non-abolitionist States –may contribute to the imposition of the death penalty for drug offences or drug-related crimes, in violation of international law.[352] These forms of inter-State cooperation may also raise questions of complicity where they contribute to the imposition of the death penalty in violation of international standards or issues of non-compliance with the assisting State’s international legal commitments.[353] The Special Rapporteur calls on States to develop guidelines on the provision of financial and technical aid and mutual assistance, especially with regard to drug-related offences, to ensure that they do not support violations of the right to life.[354]
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 6; African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 4; American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 4; Arab Charter on Human Rights (2004), art. 5; [European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (1950), art. 2; ASEAN Human Rights Declaration, 21st ASEAN Summit, Phnom Penh, 18 November 2012, para. 11; see also Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), art. 3.
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 4; Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 2.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), paras. 2, 68; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christopher Heyns, UN Doc. A/67/275 (2012), para. 11.
Human Rights Committee, General Comment 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 12.
Human Rights Committee, Communication No. 1134/2002: Gorji-Dinka v. Cameroon, UN Doc. CCPR/C/83/D/1134/2002 (2005), para. 5.1; Human Rights Committee, Communication No. 305/1988: Van Alphen v. The Netherlands, UN Doc. CCPR/C/39/D/305/1988 (1990), para. 5.8.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), paras. 13, 15; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christopher Heyns, UN Doc. A/HRC/26/36 (2014), paras. 46–47; see also Office of the UN High Commissioner for Human Rights, Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016): The Revised United Nations Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions (2017).
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 13; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christopher Heyns, UN Doc. A/HRC/26/36 (2014), paras. 46–47; see also Office of the UN High Commissioner for Human Rights, Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016): The Revised United Nations Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions (2017).
Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990); UN General Assembly, Resolution 34/169: Code of Conduct for Law Enforcement Officials, UN Doc. A/RES/34/169 (1979); see Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 13; see also Office of the UN High Commissioner for Human Rights, Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016): The Revised United Nations Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions (2017), para. 34.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 15.
Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston, UN Doc. E/CN.4/2005/7 (2014), para. 71.
Human Rights Committee, Concluding Observations: Gambia, UN Doc. CCPR/C/GMB/CO/2 (2018), para. 25; Human Rights Committee, Concluding Observations: Thailand, UN Doc. CCPR/CO/84/THA (2005), para. 10; Committee on Economic, Social and Cultural Rights, Concluding Observations: Philippines, UN Doc. E/C.12/PHL/CO/5-6 (2016), paras. 53, 54; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns: Mission to Mexico, UN Doc. A/HRC/26/36/Add.1 (2014), para. 8; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Philip Alston UN Doc. A/HRC/11/2/Add.2 (2009), paras. 33, 53; United Nations, ‘UN Experts Urge Philippines to Stop Attacks and Killings in Anti-Drugs Campaign’, 23 November 2017, http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22434&LangID=E; United Nations, ‘Killings of Suspected “drug offenders” in Bangladesh Must Stop – UN Human Rights Chief’, 6 June 2018, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23178.
Committee on Economic, Social and Cultural Rights, Concluding Observations: Philippines, UN Doc. E/C.12/PHL/CO/5-6 (2016), para. 53; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston, UN Doc. E/CN.4/2006/53 (2016), paras. 44, 55; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston, UN Doc. A/HRC/26/36/Add.1 (2014), para. 8.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 12; UN General Assembly, Resolution 34/169: Code of Conduct for Law Enforcement Officials, UN Doc. A/RES/34/169 (1979), commentary to art. 3.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 12; Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990), para. 9.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 12; Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990), para. 9.
Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christopher Heyns, UN Doc. A/HRC/26/36 (2014), para. 72.
See Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990); UN General Assembly, Resolution 34/169: Code of Conduct for Law Enforcement Officials, UN Doc. A/RES/34/169 (1979).
UN General Assembly, Resolution 34/169: Code of Conduct for Law Enforcement Officials, UN Doc. A/RES/34/169 (1979), art. 1.
International Narcotics Control Board, Annual Report 2018 (2019), paras. 326–329, 578, 628, 856; UN Office on Drugs and Crime, ‘Statement by the UNODC Executive Director on the Situation in the Philippines’, 3 August 2016, https://www.unodc.org/unodc/en/press/releases/2016/August/statement-by-the-unodc-executive-director-on-the-situation-in-the-philippines.html; International Narcotics Control Board, ‘INCB Condemns Acts of Violence against Persons Suspected of Drug-Related Crime and Drug Use in the Philippines’, 18 August 2017, https://www.incb.org/incb/en/news/press-releases/2017/press_release_20170818.html.
International Narcotics Control Board, Annual Report 2018 (2019), paras. 326–329, 578, 628, 856.
Office of the UN High Commissioner for Human Rights, Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016): The Revised United Nations Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions (2017).
See, e.g., Human Rights Committee, Communication No. 470/1991: Kindler v. Canada, UN Doc. CCPR/C/48/D/470/1991 (1993), para. 13.1–13.2; see also Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions (1989), para. 5.
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 36(2)(b); Convention on Psychotropic Substances, 1019 UNTS 14956 (1971), art. 22(2); Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 6.
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 36(2)(a)(4); Convention on Psychotropic Substances, 1019 UNTS 14956 (1971), art. 22(2)(a)(iv), (b); Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 6(8, 10).
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 6(6).
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 36(2)(a)(4); Convention on Psychotropic Substances, 1019 UNTS 14956 (1971), art. 22(2)(a)(iv), (b); Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 6(8, 10).
See, e.g., European Court of Human Rights, Einhorn v. France, Application No. 71555/01, 19 July 2001; European Court of Human Rights, Salem v. Portugal, Application No. 26844/04, 9 May 2006; European Court of Human Rights, Babar Ahmad and Others v. United Kingdom, Application Nos. 24027/07, 11949/08, 36742/08, 24 September 2012; European Court of Human Rights, Rrapo v. Albania, Application No. 58555/10, 25 December 2012.
Committee against Torture, General Comment No. 4: The Implementation of Article 3 in the Context of Article 22, UN Doc. CAT/C/GC/4 (2018), para. 37; Committee against Torture, Concluding Observations: Argentina, UN Doc. CAT/C/ARG/CO/5-6 (2017), para. 33.
See, e.g., European Court of Human Rights, Chahal v. United Kingdom, Application No. 22414/93, 15 November 1996, para. 105.
Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc. A/70/304 (2015), para. 117.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), paras. 3, 26.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), paras. 3, 26.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), paras. 3, 26.
International Narcotics Control Board, Annual Report 2017 (2018), paras. 20(h), 481.
International Narcotics Control Board, Annual Report 2017 (2018), paras. 20(h), 481.
International Narcotics Control Board, Annual Report 2017 (2018), para. 840.
Canada (Attorney General) v. PHS Community Services Society [2011] 3 SCR 134 (Canada).
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 6(2).
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 35.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 35; Human Rights Committee, Concluding Observations: Viet Nam, UN Doc. CCPR/C/VNM/CO/3 (2019), para. 23; Human Rights Committee, Concluding Observations: Lao People’s Democratic Republic, UN Doc. CCPR/C/LAO/CO/1 (2018), para. 17; Human Rights Committee, Concluding Observations: Bahrain, UN Doc. CCPR/C/BHR/CO/1 (2018), para. 31; Human Rights Committee, Concluding Observations: Thailand, UN Doc. CCPR/CO/84/THA (2005), para. 14; Human Rights Committee, Concluding Observations: Sudan, UN Doc. CCPR/C/SDN/CO/5 (2018), para. 29; Human Rights Committee, Concluding Observations: Sudan, UN Doc. CCPR/C/SDN/CO/3 (2007), para. 19; Human Rights Committee, Concluding Observations: Kuwait, UN Doc. CCPR/C/KWT/CO/3 (2016), paras. 22(b), 23; Human Rights Committee, Concluding Observations: Pakistan, UN Doc. CCPR/C/PAK/CO/1 (2017), paras. 17, 18(a); Committee against Torture, Concluding Observations: Kuwait, UN Doc. CAT/C/KWT/CO/3 (2016), para. 26; Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 41; Question of the Death Penalty: Report of the Secretary-General, UN Doc. A/HRC/21/29 (2012), para. 24; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston, UN Doc. A/HRC/4/20 (2007), paras. 51, 52; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc. A/67/275 (2012), para. 122; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, UN Doc. A/HRC/10/44 (2009), para. 66; Question of the Death Penalty: Report of the Secretary-General, UN Doc. A/HRC/24/18 (2013), para. 78; Moratorium on the Use of the Death Penalty: Report of the Secretary-General, UN Doc. A/73/260 (2018); Report of the UN High Commissioner for Human Rights: Study on the Impact of the World Drug Problem on the Enjoyment of Human Rights, UN Doc. A/HRC/30/65 (2015), para. 63; Report of the High Commissioner for Human Rights on Implementation of the Joint Commitment to Effectively Addressing and Countering the World Drug Problem with Regard to Human Rights, UN Doc. A/HRC/39/39 (2018); International Narcotics Control Board, Report of the International Narcotics Control Board, 2017 (2018), para. 257.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 37; Human Rights Committee, Concluding Observations: Sudan, UN Doc. CCPR/C/SDN/CO/5 (2018), para. 29; Human Rights Committee, Communication No. 390/1990: Luboto v. Zambia, UN Doc. CCPR/C/55/D/390/1990/Rev.1 (1995), para. 7.2; Human Rights Committee Communication No. 1132/2002: Chisanga v. Zambia, UN Doc. CCPR/C/85/D/1132/2002 (2005), para. 7.4; Human Rights Committee, Communication No. 1421/2005: Larranaga v. Philippines, UN Doc. CCPR/C/87/D/1421/2005 (2006), para. 7.2; Human Rights Committee, Communication No. 1077/2002: Carpo v. Philippines, UN Doc. CCPR/C/77/D/1077/2002 (2002), para. 8.3.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 35.
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 6(5); Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 37(a).
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 49; Human Rights Committee, Concluding Observations: Japan, UN Doc. CCPR/C/JPN/CO/6 (2014), para. 13.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 49.
Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 37(a).
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 44; Human Rights Committee, Concluding Observations: United States, UN Doc. CCPR/C/USA/CO/4 (2014), para. 8.
UN General Assembly, Resolution 73/175: Moratorium on the Use of the Death Penalty, UN Doc. A/RES/73/175 (2019).
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 38.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 35.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 42.
Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc. A/67/275 (2012), paras. 79–81; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc. A/70/304 (2015), paras. 102–107.
Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc. A/67/275 (2012), para. 79.
Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc. A/67/275 (2012), paras. 128; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc. A/70/304 (2015), para. 107.
Everyone has the right to privacy, including people who use drugs.
In accordance with this right, States should:
i. Adopt legislative, administrative, and other measures to prevent arbitrary and unlawful interference with the privacy, family life, home, and correspondence of people who use drugs.
ii. Ensure the protection of the right to privacy in relation to criminal investigations for drug-related offences.
iii. Adopt legislative and other measures to prevent the disclosure of individuals’ personal health data, including drug test results and drug dependence treatment histories, without their free and informed consent.
iv. Ensure that welfare conditionalities and administrative requirements to access rights and benefits do not unlawfully, unnecessarily, or disproportionately infringe the privacy of those who use drugs.
In addition, States may:
v. Utilise the available flexibilities in the UN drug control conventions to decriminalise the possession, purchase, or cultivation of controlled substances for personal consumption.
The right to privacy is protected in a number of international and regional instruments.[522] For example, the International Covenant on Civil and Political Rights prohibits arbitrary and unlawful interference with a person’s privacy and requires protection of the law against such interference.[523] The right to privacy is also a key component of other rights.[524] For example, the right to health includes the obligation to ensure that health care providers respect confidentiality in health care settings and to otherwise protect the confidentiality of personal health information.[525] State measures compelling the communication or disclosure of personal health information without the individual’s consent must be strictly justified.[526]
Domestic courts in several countries have ruled that the criminalisation of drug possession and cultivation for personal use violates the right to privacy as protected by their respective constitutions.[527] Other examples of potential infringements of this right with regard to drug policy include special investigative techniques used in drug enforcement operations, the use of personal health data derived from drug testing and treatment records, welfare conditionalities, and the requirement to be placed on a government registry to receive harm reduction services or drug dependence treatment.
Investigations
Special investigative techniques that can be used in drug-related cases may give rise, under certain circumstances, to concerns about the impermissible infringement of the right to privacy. Through its case law on secret measures of surveillance, the European Court of Human Rights has developed a set of minimum statutory safeguards to avoid abuses of power and comply with human rights standards, including with respect to the right to privacy. The safeguards define the nature of the offences that may give rise to a surveillance order; categories of people liable to be subject to any such measure; the duration of any such measure; the procedure to be followed for examining, using, and storing the data obtained; the precautions to be taken when communicating the data to other parties; and the circumstances in which recordings may or must be erased or destroyed. In addition, the Court has established that the body issuing authorisations for surveillance orders should be independent[528] and that there should be a form of judicial control or control by an independent body over the issuing body’s activity.[529] Interceptions ordered by the public prosecution, without the possibility of an a priori control by a judicial officer, do not meet the required standards of independence.[530]
In its jurisprudence regarding the interception of communications, the European Court of Human Rights defines the following minimum safeguards for statutory regulation: a definition of the categories of people liable to have their telephones tapped by judicial order; the nature of the offences that may give rise to such an order; a limit on the duration of telephone tapping; a procedure for drawing up summary reports containing intercepted communications; the precautions to be taken in order to communicate the recordings intact and in their entirety for possible inspection by the judge and defence; and the circumstances in which recordings may or must be destroyed, particularly where the accused has been discharged by an investigating judge or acquitted by a court.[531]
Health data, drug testing, and drug treatment
According to the Human Rights Committee, the gathering and holding of personal information on computers, data banks, and other devices by public authorities or private individuals must be regulated by law. States must take effective measures to ensure that information about a person’s private life is not obtained by people not authorised by law to receive, process, and use it. Everyone should have the right to ascertain whether and what personal data is stored in data files and which public authorities or private individuals control or may control their files.[532]
UN human rights mechanisms have raised concerns that the disclosure of private, confidential information about a person’s health status may drive people away from seeking medical attention or drug dependence treatment, out of fear that their illicit drug use will be shared with law enforcement or other State authorities, possibly leading to arrest, imprisonment, greater police attention, or further ill-treatment by health providers, including the imposition of drug dependence ‘treatment’ without their consent.[533] In some jurisdictions, government drug treatment clinics establish registries of people seeking treatment and share this information with law enforcement and other government agencies. This violates the obligation to protect the confidentiality of personal health information[534] and may deter people from seeking treatment.[535] In addition, people from whom such data are collected should be informed – at or prior to the time of collection – of the intended purpose for which the information is being collected, the reasons why it has been requested, and whether it will be shared with government institutions.[536]
The Special Rapporteur on the right to health has found that ‘a lack of confidentiality may deter individuals from seeking advice and treatment, thereby jeopardizing their health and well-being. Thus, States are obliged to take effective measures to ensure medical confidentiality and privacy’.[537] The Committee on the Elimination of Discrimination against Women has likewise observed that ‘while lack of respect for the confidentiality of patients will affect both men and women’, it may especially ‘deter women from seeking advice and treatment’ such as ‘medical care for diseases of the genital tract, for contraception or for incomplete abortion and in cases where they have suffered sexual or physical violence’.[538] This may be especially true for poor and otherwise marginalised women who use drugs. The Supreme Court of Argentina has ruled that health care professionals’ disclosure of confidential information about drug ingestion for use by the police as evidence of drug trafficking violates the right to medical confidentiality, derived from the constitutional right to privacy.[539]
Welfare conditionality
The Committee on Economic, Social and Cultural Rights has expressed concern that conditioning welfare benefits on the results of a drug test lacks a credible evidence base and may deepen stigma against people who use drugs and drive them away from treatment.[540] Such interference with the right to privacy may be lawful in the narrow sense of being pursuant to national law and involving the consent of the person tested, but it may have an unlawful discriminatory impact on people based on their sex or health or economic status.[541] Courts in the United States have held the mandatory or random drug testing of welfare recipients, absent a reasonable suspicion of drug use, to be an unconstitutional violation of privacy protections.[542]
Right to privacy and the internet
The UN General Assembly has raised concern that ‘unlawful or arbitrary surveillance and/or interception of communications, as well as unlawful or arbitrary collection of personal data, as highly intrusive acts, violate the rights to privacy and freedom of expression and may contradict the tenets of a democratic society’. It has also noted that ‘while concerns about public security may justify the gathering and protection of certain sensitive information, States must ensure full compliance with their obligations under international human rights law’.[543] The Office of the UN High Commissioner for Human Rights has stated that inadequate national legislation and enforcement, weak procedural safeguards, and ineffective oversight have contributed to a lack of accountability for arbitrary or unlawful interference in the right to privacy. It has emphasised the need for States to ensure that their laws, policies, and practices conform with international human rights law and to ensure that effective and independent oversight mechanisms are in place.[544]
The UN General Assembly Special Session 2016 Outcome Document recommends a number of measures to support the use of the internet to address drug trafficking, money laundering, and other illicit drug-related activities.[545]
Relationship to the UN drug control conventions
There is sufficient flexibility in the drug control conventions to decriminalise possession and other activities related to the personal consumption of controlled substances, even if not for medical or scientific purposes. The 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances requires only that each State Party establish criminal liability for the intentional ‘possession, purchase or cultivation of drugs for personal consumption’ that is ‘contrary to the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971 Convention’ (e.g., for non-medical or non-scientific use).[546] This obligation is further subject to any ‘constitutional limitations’ of the State Party[547] and to the ‘constitutional principles and basic concepts of [the State Party’s] legal system’.[548] States therefore have the latitude to determine whether imposing criminal liability and sanctions for drug possession, purchase, or cultivation for personal consumption contravenes constitutional provisions or otherwise offends against the basic concepts of their legal system, including in relation to the right to privacy.
Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), art. 12; International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 17; American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 11; [European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (1950), art. 8; Arab Charter on Human Rights (2004), art. 21.
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 17(1).
See, e.g., Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), para. 3.
Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), para. 12(b, c); European Court of Human Rights, Z v. Finland, Application No. 22009/93, 25 February 1997, para. 96; see also Smith v. Jones [1999] 1 SCR 455 (Canada), para. 74 et seq.
European Court of Human Rights, Z v. Finland, Application No. 22009/93, 25 February 1997, para. 96; see also Smith v. Jones [1999] 1 SCR 455 (Canada), para. 74 et seq.
Arriola, Sebastián y otros s/ causa n° 9080 (A. 891. XLIV), Corte Suprema de Justicia de la Nación (Argentina), 25 August 2009; Sentencia C-574/2011, Corte Constitucional (Colombia), 22 July 2011; Amparo en Revisión 237/2014, Suprema Corte de Justicia de la Nación (Mexico), 4 November 2015; Amparo en Revisión 1115/2017, Suprema Corte de Justicia de la Nación (Mexico), 11 April 2015; Amparo en Revisión 623/2017, Suprema Corte de Justicia de la Nación (Mexico), 13 June 2018); Amparo en Revisión 547/2018, Suprema Corte de Justicia de la Nación (Mexico), 31 October 2018; Amparo en Revisión 548/2018, Suprema Corte de Justicia de la Nación (Mexico), 31 October 2018; Minister of Justice and Constitutional Development and Others v. Prince; National Director of Public Prosecutions and Others v. Rubin; National Director of Public Prosecutions and Others v. Acton and Others [2018] ZACC 30 (South Africa).
European Court of Human Rights, Malone v. United Kingdom, Application No. 8691/79, 2 August 1984, para. 67.
European Court of Human Rights, Huvig and Huvig-Sylvestre v. France, Application No. 11105/84, 24 April 1990, para. 33; European Court of Human Rights, Kruslin v. France, Application No. 11801/85, 24 April 1990, para. 34; European Court of Human Rights, Kopp v. Switzerland, Application No. 23224/94, 25 March 1998, para. 72; European Court of Human Rights, Amann v. Switzerland, Application No. 27798/95, 16 February 2000, para. 60; European Court of Human Rights, Iordachi and Others v. Moldova, Application No. 25198/02, 10 February 2009, para. 40.
European Court of Human Rights, Dumitru Popescu v. Romania (2), Application No. 27798/95, 26 April 2007, paras. 70–73.
European Court of Human Rights, Huvig and Huvig-Sylvestre v. France, Application No. 11105/84, 24 April 1990, para. 34; European Court of Human Rights, Kruslin v. France, Application No. 11801/85, 24 April 1990, para. 35; European Court of Human Rights, Valenzuela Contreras v. Spain, Application No. 27671/95, 10 July 1998, para. 46.
Human Rights Committee, General Comment No. 16: Article 17 (Right to Privacy) (1988), para. 10.
Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover, UN Doc. A/65/255 (2010), para. 20; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/22/53 (2013), para. 72.
Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), para. 12.
Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover, UN Doc. A/65/255 (2010), para. 20.
Organization for Economic Cooperation and Development, Guidelines Governing the Protection of Privacy and Transborder Flows of Personal Data (2013), paras. 9, 10.
Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, UN Doc. E/CN.4/2004/49 (2004), para. 40.
Committee on the Elimination of Discrimination against Women, General Recommendation No. 24: Women and Health, UN Doc. A/54/38/Rev.1, chap. I (1999), para. 12(d).
Baldivieso, César Alejandro s/ causa n° 4733 (B. 463, L. XL), Corte Suprema de Justicia de la Nación (Argentina), 20 April 2010.
Committee on Economic, Social and Cultural Rights, Concluding Observations: Australia, UN Doc. C.12/AUS/CO/5 (2017), para. 43.
Communication from Philip Alston, Special Rapporteur on Extreme Poverty and Human Rights, Reference No. OL AUS 5/2017 (2017).
Lebron v. Secretary of Florida Department of Children & Families, 710 F.3d 1202 (11th Cir. 2014) (United States); Marchwinski v. Howard, 113 F. Supp. 2d 1134, 1135 (E.D. Mich. 2000), rev’d, 309 F.3d 330 (6th Cir. 2002), reh’g en banc granted, judgement vacated, 319 F.3d 258 (6th Cir. 2003), aff’d by an equally divided court, 60 F. App’x 601 (6th Cir. 2003) (en banc) (United States).
UN General Assembly, Resolution 68/167: The Right to Privacy in the Digital Age, UN Doc. A/RES/68/167 (2013).
The Right to Privacy in the Digital Age: Report of the Office of the United Nations High Commissioner for Human Rights, UN Doc. A/HRC/27/37 (2014), paras. 47, 50, 51.
UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), paras. 5(p, q, r, s, t).
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 3(2).
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 36; Convention on Psychotropic Substances, 1019 UNTS 14956 (1971), art. 22.
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 3(2).
Torture and other cruel, inhuman, or degrading treatment or punishment are absolutely prohibited, in all circumstances. This includes during the arrest, questioning, and detention of persons alleged to have committed drug-related crimes or otherwise implicated during an investigation. The withholding of drugs from those who need them for medical purposes, including for drug dependence treatment and pain relief, is considered a form of torture.
In accordance with this right, States shall:
i. Take effective legislative, administrative, judicial, and other measures to prohibit, prevent, and redress all acts of torture and ill-treatment in their jurisdiction and in all settings under their custody or control, including in the context of drug dependence treatment, whether administered in public or private facilities.
ii. Promptly investigate allegations of torture and cruel, inhuman, or degrading treatment or punishment by State agents, as well as acts that occur in their territory or under their jurisdiction (whether carried out by State or non-State actors), and prosecute and punish those responsible, including when victims are persons alleged to have committed drug-related offences or who are dependent on drugs.
iii. Avoid extraditing or otherwise forcibly returning or transferring individuals to another State where there are substantial grounds to believe that they are at risk of subjection to torture or cruel, inhuman, or degrading treatment or punishment, including by non-State actors over which the receiving State has no or only partial control or whose acts the receiving State cannot prevent, or because they risk expulsion to a third State where they may be in danger of subjection to torture or other prohibited ill-treatment.
iv. Abolish corporal punishment for drug offences where it is in place.
In addition, States should:
v. Ensure access to essential medicines, including for drug dependence, pain treatment, and palliative care.
vi. Ensure that access to health care for people who use or are dependent on drugs and are in places of detention is equivalent to that available in the community.
vii. Establish a national system to effectively monitor drug dependence treatment practices and to inspect drug dependence treatment centres, as well as places of detention, including migrant detention centres, police stations, and prisons.
The prohibition against torture and other cruel, inhuman, or degrading treatment or punishment is enshrined in numerous international and regional treaties and other instruments.[355] This prohibition is absolute and non-[356] The obligation to prohibit, prevent, and redress torture and ill-treatment extends to all acts by State and non-State actors[357] and to all contexts of custody and control, including prisons, hospitals, ‘and other institutions as well as contexts where the failure of the State to intervene encourages and enhances the danger of privately inflicted harm’.[358]
Policing practices
The Committee against Torture, the Human Rights Committee, the Working Group on Arbitrary Detention, and the Special Rapporteur on torture have found that the use of violence by law enforcement officials and the withholding of opioid substitution therapy or otherwise inducing withdrawal to coerce confessions or obtain information – for example, about other people who use drugs or to reveal dealers or suppliers – constitute ill-treatment and possibly torture.[359] The Committee against Torture has urged that States take ‘all measures necessary to effectively protect drug users deprived of liberty against the infliction of pain and suffering associated with withdrawal by police, including to extract confessions; ensure such confessions are not admitted by the courts; and provide drug users in detention with adequate access to necessary medical treatment’.[360]
The use of violence by law enforcement officials and of withdrawal to coerce confessions or obtain information also contravenes international standards for law enforcement, in particular the UN Code of Conduct for Law Enforcement Officials, which states that torture by law enforcement officials cannot be justified in any circumstance and instructs such officials to ensure the ‘full protection of persons in their custody’ and ‘take immediate action to secure medical attention whenever required’.[361] Other policing practices may infringe the right to freedom from cruel, inhuman, and degrading treatment. For example, the European Court of Human Rights has found that forcing regurgitation – which causes physical pain and mental suffering – to retrieve evidence of a drug offence that could have been obtained by less intrusive methods constitutes inhuman and degrading treatment.[362]
Pretrial detention
The Committee against Torture and the Special Rapporteur on torture have raised concerns about criminal laws on narcotics that provide that people arrested under such laws can be held for lengthy periods without being brought before a judge and without having access to legal counsel. They have found that such regimes leave the accused vulnerable to a high risk of torture and ill-treatment. They have thus recommended that such laws be amended and that States otherwise ensure judicial procedure guarantees as part of efforts to prevent torture.[363]
Prison and other closed settings
Abuse among prisoners, from subtle forms of harassment to intimidation and serious physical and sexual attacks, are common.[364] People who use drugs and other vulnerable populations might face heightened risk of violence by other detainees, especially where States have delegated detainees with the authority to maintain discipline.[365] The employment of detainees in such disciplinary capacity violates international standards.[366] Moreover, States have a positive obligation to exercise due diligence to prevent violence among those in their custody. Inter-prisoner violence may amount to torture or ill-treatment if States fail to act with due diligence to prevent it.[367]
Extradition and other forcible return or transfer
Prohibition of the extradition and other forcible return or transfer of an individual to a country where there are substantial grounds for believing that they may face torture or cruel, inhuman, or degrading treatment or punishment by State or non-State actors is enshrined in international and regional human rights instruments. For example, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment expressly provides that ‘[n]o State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture’.[368]
Limits on extradition and other forms of forcible transfer under the Convention against Torture also apply where there are substantial grounds for believing that the person in question would be in danger of subjection to torture or ill-treatment at the hands of non-State actors over whom the receiving State has no or only partial de facto control, whose acts the State is unable to prevent, or who otherwise operate with impunity in the receiving State.[369] The International Covenant on Civil and Political Rights[370] and regional human rights instruments likewise protect individuals from extradition and other forms of transfer in cases of torture and cruel, inhuman, or degrading treatment or punishment.[371] The Committee against Torture has raised specific concerns that a government expelling foreigners convicted of drug trafficking and banning them from the country for a period seriously risks violating the principle of non-refoulement.[372]
Health services and cruel, inhuman, or degrading treatment
UN human rights mechanisms have concluded that the denial, removal, or discontinuation of effective drug dependence treatment, such as opioid substitution therapy, including in custodial settings, may violate the prohibition against cruel, inhuman, or degrading treatment or punishment.[373] Government failure to ensure access to controlled medicines for pain relief may also constitute cruel, inhuman, or degrading treatment or punishment, where, for example, a person’s suffering is severe and meets the minimum level of severity under the prohibition against torture and ill-treatment; where the State is, or should be, aware of the person’s suffering, including when no appropriate treatment was offered; and where the State failed to take all reasonable steps to protect the person’s physical and mental integrity.[374] Withholding antiretroviral treatment from people living with HIV who use drugs – based on the assumption that they will not be able to adhere to said treatment – has been deemed cruel and inhuman treatment in light of the physical and psychological suffering it causes.[375]
In addition, States have an obligation to ensure that incarcerated individuals have access to the same level of health care available in the general community, including services related to drug use and drug dependence.[376] Failure to do so may amount to cruel, inhuman, or degrading treatment or punishment.[377]
Independent oversight of places of deprivation of liberty
The Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment defines ‘deprivation of liberty’ as ‘any form of detention or imprisonment or the placement of a person in a public or private custodial setting which that person is not permitted to leave at will by order of any judicial, administrative or other authority’.[378]
International norms on the treatment of people deprived of liberty require that regular inspections of places of deprivation of liberty be performed by the administration of the institution and a body independent of it. The Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment requires that States Parties ‘set up, designate or maintain at the domestic level one or several visiting bodies for the prevention of torture and other cruel, inhuman or degrading treatment or punishment’, called ‘national preventive mechanisms’,[379] and guarantee the functional independence and independence of the personnel of these mechanisms.[380] The Special Rapporteur on torture has recommended that States ‘ensure that all places of detention are subjected to effective oversight and inspection and unannounced visits by independent bodies established in conformity with the Optional Protocol to the Convention against Torture as well as by civil society monitors; and ensure the inclusion of women and lesbian, gay, bisexual and transgender persons and other minority representation on monitoring bodies’.[381] The Special Rapporteur has also recommended that States monitor places of detention in a gender-sensitive manner[382] and ‘set up operational protocols, codes of conduct, regulations and training modules for the ongoing monitoring and analysis of discrimination against women, girls, and lesbian, gay, bisexual and transgender persons with regard to access to all services and rehabilitation programmes in detention; and document, investigate, sanction and redress complaints of imbalance and direct or indirect discrimination in accessing services and complaint mechanisms’.[383]
The UN Standard Minimum Rules for the Treatment of Prisoners (also known as the Mandela Rules) and the UN Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (also known as the Bangkok Rules) also provide guidance on the conducting of such inspections,[384] specifying, among other things, that bodies tasked with monitoring, inspection, and supervision should include women members.[385]
Drug detention centres
In some countries, people who are suspected of drug use are held in compulsory drug detention centres, often without medical evaluation, judicial review, or right of appeal and undergo detention, physical disciplinary exercises (such as military-style drills), and forced labour as ‘treatment’, in plain disregard of medical evidence and in violation of international human rights protections, including against torture and ill-treatment. The Committee against Torture, the Committee on the Rights of the Child, the Committee on Economic, Social and Cultural Rights, the Human Rights Committee, the Special Rapporteurs on torture and on the right to health, and the Working Group on Arbitrary Detention have raised concerns about torture and ill-treatment in compulsory drug detention centres, calling for their immediate closure; an end to financial and technical support for such centres; prompt, thorough, impartial investigations of abuses; the prosecution of alleged perpetrators and, if found guilty, punishment commensurate with the seriousness of their acts; and adequate redress for victims.[386] In addition, the Committee on the Rights of the Child has urged the release, without delay, of children in drug detention centres and the establishment of an independent, child-sensitive mechanism to receive complaints against law enforcement officers and to provide victims with redress.[387]
The Human Rights Committee has raised concern about arbitrary arrest and detention without due process,[388] as well as compulsory detoxification, forced labour, inadequate medical care, and onerous work conditions in drug detention centres.[389] 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.[390]
In 2012, 12 UN entities called for the immediate closure of such facilities, as well as the immediate release of those detained.[391] In 2020, 13 UN entities, recalling the 2012 joint statement on compulsory drug detention centres, likewise called on States operating compulsory drug detention centres to close them permanently without delay and to implement voluntary, evidence- and rights-based health and social services in the community as part of efforts to curb the spread of COVID-19.[392] Moreover, the UN General Assembly Special Session 2016 Outcome Document places an emphasis on people’s ‘voluntary participation’ in treatment programmes and the need to ‘prevent any possible acts of cruel, inhuman or degrading treatment or punishment’ in drug treatment and rehabilitation facilities.[393]
Solitary confinement, judicial corporal punishment, and corporal punishment as ‘treatment’
The Committee against Torture has expressed concern about the use of solitary confinement in drug treatment centres ‘when persons undergoing treatment are not “reformed through education” or do not obey discipline’, among other grounds.[394] The Committee has also expressed concern about the extended use of administrative detention, such as measures of ‘compulsory isolation in drug treatment centres’. It has called for the abolition of all forms of administrative detention, ‘which confine individuals without due process and make them vulnerable to abuse’, and for the prioritisation of community-based or alternative social-care services for people with drug dependence.[395]
The Special Rapporteurs on health and on torture have raised concerns about State-sanctioned beatings, caning, or whipping,[396] as well as ‘flogging therapy’ [397]in the guise of ‘treatment’, at compulsory drug detention centres. The UN Working Group on Arbitrary Detention has received reports of the caning of prisoners found guilty of drug trafficking or drug possession.[398] The Human Rights Committee, the Committee against Torture, the Committee on Economic, Social and Cultural Rights, and the Committee on the Rights of the Child have called for the abolition of corporal punishment, whether imposed under criminal or administrative proceedings.[399] The Human Rights Committee has stated that corporal punishment constitutes ill-treatment or punishment contrary to article 7 of the Covenant, irrespective of the nature of the crime being punished or the permissibility of corporal punishment under domestic law.[400] The Committee has also recognised that the imposition of a sentence of corporal punishment violates prohibitions against torture and ill-treatment, regardless of whether the sentence is carried out.[401] The Special Rapporteur on torture has also concluded that ‘without exception’, corporal punishment amounts to cruel, inhuman, or degrading punishment or torture and is absolutely prohibited in international law.[402]
Private actors
The obligation to prohibit, prevent, and redress torture applies to acts by State and non-State actors alike[403] and to all contexts of custody and control, including prisons, hospitals, ‘and other institutions as well as contexts where the failure of the State to intervene encourages and enhances the danger of privately inflicted harm’.[404] The obligation therefore extends to private facilities.
The Committee against Torture has raised concern about poor conditions in private drug treatment centres and ill-treatment inflicted upon persons admitted to them. The Committee calls for the taking of all steps necessary to prevent and punish ill-treatment in such centres and for the prompt, thorough, and effective investigation of all complaints of ill-treatment in these centres, ensuring that the persons responsible are brought to trial and, if found guilty, receive penalties commensurate with the seriousness of their acts.[405]
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 7; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46 (1984), arts. 2, 16; [European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (1950), art. 3; American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 1; African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 5; Arab Charter on Human Rights (2004), art. 8; Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), art. 5.
Committee against Torture, General Comment No. 2: Implementation of Article 2 by States Parties, UN Doc. CAT/C/GC/2 (2008), paras. 1, 2; Committee against Torture, Concluding Observations: Australia, UN Doc. CAT/C/AUS/CO/3 (2008), para. 18; Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, UN Doc. E/CN.4/1985/4 (1984), para. 27.
Human Rights Committee, General Comment No. 20: Prohibition of Torture, UN Doc. HRI/GEN/1/Rev.1 (1994), para. 8; Committee against Torture, General Comment No. 2: Implementation of Article 2 by States Parties, UN Doc. CAT/C/GC/2 (2008), paras. 15, 17, 18; Committee against Torture, Communication No. 161/2000: Hajrizi Dzemajl et al. v. Yugoslavia, UN Doc. CAT/C/29/D/161/2000 (2002), paras. 8.12, 9.2; see also European Court of Human Rights, Z and Others v. United Kingdom, Application No. 29392/95, 10 May 2001, para. 73.
Committee against Torture, General Comment No. 2: Implementation of Article 2 by States Parties, UN Doc. CAT/C/GC/2 (2008), paras. 15, 17; European Court of Human Rights, Opuz v. Turkey, Application No. 3401/02, 9 June 2009, para. 159; see also Committee on the Elimination of Discrimination against Women, Communication No. 17/2008: Maria de Lourdes da Silva Pimentel v. Brazil, UN Doc. CEDAW/C/49/D/17/2008 (2011), para. 7.5.
Committee against Torture, Concluding Observations: Russia, UN Doc. CAT/C/RUS/6 (2018), para. 20; Human Rights Committee, Concluding Observations: Russian Federation, UN Doc. CCPR/RUS/CO/7 (2015), para. 16; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak: Addendum, Mission to Indonesia, UN Doc. A/HRC/7/3/Add.7 (2008), paras. 22, 64, 70–71, 80, 108–109, 127, 139, 140, 142; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/22/53 (2013), para. 73; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, Addendum: Mission to Uruguay, UN Doc. A/HRC/13/39/Add.2 (2009), para. 85; Interim report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc. A/68/295 (2013), para. 68; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, UN Doc. A/HRC/10/44 (2009), para. 57; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak: Addendum, Mission to Indonesia, UN Doc. A/HRC/7/3/Add.7 (2009), para. 22; Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), paras. 21–23.
Committee against Torture, Concluding Observations: Russia, UN Doc. CAT/C/RUS/6 (2018), para. 21.
UN General Assembly, Resolution 34/169: Code of Conduct for Law Enforcement Officials, UN Doc. A/RES/34/169 (1979), arts. 5, 6.
European Court of Human Rights, Jalloh v. Germany, Application No. 54810/00, 11 July 2006.
Committee against Torture, Concluding Observations: Mauritania, UN Doc. CAT/C/MRT/CO/2 (2018), paras. 8–9; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez: Mission to Mauritania, UN Doc. A/HRC/34/54/Add.1 (2017), paras. 75, 117.
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/68/295 (2013), para. 47.
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/68/295 (2013), para. 47.
UN Commission on Crime Prevention and Criminal Justice, UN Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), UN Doc. E/CN.15/2015/L.6/Rev.1 (2015), rule 40.
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/68/295 (2013), para. 48; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, UN Doc. A/HRC/13/39/Add.3 (2009), para. 28.
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46 (1984), art. 3; see also Committee against Torture, Committee against Torture, General Comment No. 4: The Implementation of Article 3 in the Context of Article 22 (2018), para. 9; Committee against Torture, General Comment No. 2: Implementation of Article 2 by States Parties, UN Doc. CAT/C/GC/2 (2008), paras. 3, 6, 19, 25.
Committee against Torture, General Comment No. 4: The Implementation of Article 3 in the Context of Article 22 (2018), para. 30.
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 7; Human Rights Committee, General Comment No. 20: Prohibition of Torture, UN Doc. HRI/GEN/1/Rev.1 (1994), para. 9; Human Rights Committee, Communication No. 470/1991: Kindler v. Canada, UN Doc. CCPR/C/48/D/470/1991 (1993); Human Rights Committee, Communication No. 469/1991: Chitat Ng v. Canada, UN Doc. CCPR/C/49/D/469/1991 (1994); Human Rights Committee, Communication No. 539/1993: Cox v. Canada, UN Doc. CCPR/C/52/D/539/1993 (1994).
[European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (1950), art. 3; African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 5; Inter-American Convention to Prevent and Punish Torture, O.A.S. Treaty Series No. 67 (1987), art. 2; see also 1951 Convention relating to the Status of Refugees, 189 UNTS 137 (1951), art. 33; Organization for African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa (1969), arts. 1(1, 2), 2(3). From the jurisprudence of the European Court of Human Rights, see, e.g., European Court of Human Rights, Soering v. United Kingdom, Application No. 14038/88, 7 July 1989; European Court of Human Rights, Cruz Varas v. Sweden, Application No. 15576/89, 20 March 1991; European Court of Human Rights, Vilvarajah and Others v. United Kingdom, Application Nos. 13163/87, 13164/87, 13165/87, 13447/87, 13448/87, 30 October 1991.
Committee against Torture, Concluding Observations: Switzerland, UN Doc. CAT/C/CHE/CO/6 (2010), para. 11.
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, UN Doc. A/HRC/10/44 (2009), paras. 57, 74(e); Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/22/53 (2013); see also European Court of Human Rights, Bensaid v. the United Kingdom, Application No. 44599/98, 6 May 2001, para. 37.
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, UN Doc. A/HRC/10/44 (2009), para. 72; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/22/53 (2013), paras. 54, 56.
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/22/53 (2013), para. 73; see also Committee against Torture, Communication No. 672/2015: D.C. and D.E v. Georgia, UN Doc. CAT/C/62/D/672/2015 (2017).
Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover, UN Doc. A/65/255 (2010), para. 60.
Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc. A/68/295 (2013), paras. 26, 54.
Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 2375 UNTS 237 (2002), art. 4(1).
Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 2375 UNTS 237 (2002), art. 4(2).
Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 2375 UNTS 237 (2002), art. 18(1).
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/31/57 (2016), para. 20(y).
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/31/57 (2016), para. 20(x).
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/31/57 (2016), para. 20(w).
UN Commission on Crime Prevention and Criminal Justice, UN Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), UN Doc. E/CN.15/2015/L.6/Rev.1 (2015), rules 83–85.
UN General Assembly, Resolution 65/229: United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), UN Doc. A/RES/65/22 (2011), rule 25(3).
See, e.g., Committee against Torture, Concluding Observations: Belarus, UN Doc. CAT/C/BLR/5 (2018), paras. 23–24; Committee against Torture, Concluding Observations: Guatemala, UN Doc. CAT/C/GTM/CO/5-6 (2013), paras. 20–21; Committee against Torture, Concluding Observations: Guatemala, UN Doc. CAT/C/GTM/CO/7 (2018), paras. 30–31; Committee against Torture, Concluding Observations: Turkmenistan, UN Doc. CAT//C/TKM/CO/2(2017), para. 8(d); Committee against Torture, Concluding Observations: China, UN Doc. CAT/C/CHN/CO/5 (2016), paras. 26, 42–43; Human Rights Committee, Concluding Observations: Cambodia, UN Doc. CCPR/C/KHM/CO/2 (2015), para. 16; Committee on the Rights of the Child, Concluding Observations: Cambodia, UN Doc. CRC/C/KHM/CO/2-3 (2011), paras. 38–39; Committee on Economic, Social and Cultural Rights, Concluding Observations: Belarus, UN Doc. E/C.12/BLR/CO/4-6 (2013), para. 15; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/22/53 (2013), paras. 42, 87(a); Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover, UN Doc. A/65/255 (2010), paras. 30–39; Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health: Mission to Viet Nam, UN Doc. A/HRC/20/15/Add.2 (2012), para. 64(a); Report of the Working Group on Arbitrary Detention, UN Doc. A/HRCC/47/40 (2021), paras. 86, 126 (e, f); United Nations, ‘Statement by the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health on the Protection of People Who Use Drugs during the COVID-19 Pandemic’, 16 April 2020, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25797.
Committee on the Rights of the Child, Concluding Observations: Cambodia, UN Doc. CRC/C/KHM/CO/2-3 (2011), para. 39.
Human Rights Committee, Concluding Observations: Lao People’s Democratic Republic, UN Doc. CCPR/C/LAO/CO/1 (2019), para. 37.
Human Rights Committee, Concluding Observations: Viet Nam, UN Doc. CCPR/C/VNM/CO/3 (2019), para. 31.
Human Rights Committee, Concluding Observations: Viet Nam, UN Doc. CCPR/C/VNM/CO/3 (2019), para. 32.
United Nations Office on Drugs and Crime, World Health Organization, Joint United Nations Programme on HIV/AIDS, et al., Joint Statement on COVID-19 in Prisons and Other Closed Settings, https://www.unodc.org/documents/Advocacy-Section/20200513_PS_covid-prisons_en.pdf; International Labour Organization, Office of the UN High Commissioner for Human Rights, UN Development Programme, et al., Joint Statement on Compulsory Drug Detention and Rehabilitation Centres (2012); see also Global Commission on HIV and the Law, Risks, Rights and Health (2012), rec. 3.1.1.
United Nations Development Programme, Office of the United Nations High Commissioner for Human Rights, World Health Organization, Joint United Nations Programme on HIV/AIDS, et al., Joint Statement: Compulsory Drug Detention and Rehabilitation Centres in Asia and the Pacific in the Context of COVID-19 (2020).
UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), paras. 1(j), 4(c).
Committee against Torture, Concluding Observations: China, UN Doc. CAT /C/CHN/CO/5 (2016), para. 26.
Committee against Torture, Concluding Observations: China, UN Doc. CAT /C/CHN/CO/5 (2016), paras. 42, 43(b, c).
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/22/53 (2013), para. 41.
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/22/53 (2013), para. 41; Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover, UN Doc. A/65/255 (2010), para. 35.
Report of the Working Group on Arbitrary Detention: Visit to Malyasia, UN Doc. A/HRC/16/47/Add.2 (2011), para. 55.
Committee against Torture, Concluding Observations: Qatar, UN Doc. CAT/C/QAT/CO/3 (2018), paras. 31–32; Human Rights Committee, Concluding Observations: Iran, UN Doc. CCPR/C/IRN/CO/3 (2011), para. 16; Human Rights Committee, Concluding Observations: Barbados, UN Doc. CCPR/C/BRB/CO/3 (2007), para. 12; Committee on Economic, Social and Cultural Rights, Concluding Observations: Rwanda, UN Doc. E/C.12/RWA/CO/2-4 (2013), para. 21; Committee on the Rights of the Child, Concluding Observations: Qatar, UN Doc. CRC/C/QAT/CO/3-4 (2017), paras. 21–22.
Human Rights Committee, Communication No. 792/1998: Higginson v. Jamaica, UN Doc. CCPR/C/74/D/792/1998 (2002) para. 4.6; Human Rights Committee, Communication No. 928/2000: Sooklal v. Trinidad and Tobago, UN Doc. CCPR/C/73/D/928/2000 (2001) para. 4.6; Human Rights Committee, Communication No. 793/1998: Errol Pryce v. Jamaica, UN Doc. CCPR/C/80/D/793/1998 (2004) para. 6.2.
Human Rights Committee, Communication No. 792/1998: Higginson v. Jamaica, UN Doc. CCPR/C/74/D/792/1998 (2002), para. 4.6.
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, UN Doc. A/HRC/13/39 (2010), para. 63.
Human Rights Committee, General Comment No. 20: Prohibition of Torture, UN Doc. HRI/GEN/1/Rev.1 (1994), para. 8; Committee against Torture, General Comment No. 2: Implementation of Article 2 by States Parties, UN Doc. CAT/C/GC/2 (2008), paras. 15, 17, 18; Committee against Torture, Communication No. 161/2000: Hajrizi Dzemajl et al. v. Yugoslavia, UN Doc. CAT/C/29/D/161/2000 (2002), para. 8.12; Committee against Torture, Communication No. 161/2000: Hajrizi Dzemajl et al. v. Yugoslavia, UN Doc. CAT/C/29/D/161/2000 (2002), para. 9.2; see also European Court of Human Rights, Z and Others v. United Kingdom, Application No. 29392/95, 10 May 2001, para. 73.
Committee against Torture, General Comment No. 2: Implementation of Article 2 by States Parties, UN Doc. CAT/C/GC/2 (2008), paras. 15, 17; see also European Court of Human Rights, Opuz v. Turkey, Application No. 3401/02, 9 June 2009, para. 159; see also Committee on the Elimination of Discrimination against Women, Communication No. 17/2008: Maria de Lourdes da Silva Pimentel v. Brazil, UN Doc. CEDAW/C/49/D/17/2008 (2011), para. 7.5 (observing that ‘the State is directly responsible for the action of private institutions when it outsources its medical services’ and ‘always maintains the duty to regulate and monitor private health-care institutions’).
Committee against Torture, Concluding Observations: Guatemala, UN Doc. CAT/C/GTM/CO/5-6 (2013), para. 20.
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]
Arrest
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 drugs[434] 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 torture[437] and the Special Rapporteur on the right to health,[438] as well as treaty bodies, including the Committee on the Rights of the Child[439] 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 needs[460] 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 welfare[478] 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.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/22/44 (2012), para. 75; see also International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 9; [European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (1950), art. 5; American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 7; African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 6; Arab Charter on Human Rights (2004), art. 14; Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), art. 9.
Human Rights Committee, General Comment No. 35: Liberty and Security of Person, UN Doc. CCPR/C/GC/35 (2014), para. 40; Report of the Working Group on Arbitrary Detention: United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court, UN Doc. A/HRC/30/37 (2015), paras. 33, 47(a). Under article 5(e) of the European Convention on Human Rights, both alcoholism and drug addiction are listed as legitimate limitations on the right to liberty and security. However, the European Court of Human Rights has never issued a judgement that engages this limitation in the context of drug addiction. The limited jurisprudence on alcohol intoxication suggests a high bar for lawful detention in this context: ‘whether the person concerned behaved, under the influence of alcohol, in such a way that he posed a threat to the public or endangered his own health, well-being or personal safety, and whether detention of the intoxicated person was the last resort to safeguard the individual or the public interest, because less severe measures have been considered and found to be insufficient. When one of these criteria is not fulfilled, the basis for the deprivation of liberty does not exist’. See European Court of Human Rights, Kharin v. Russia, Application No. 37345/03, 3 February 2011), para. 34
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 9; [European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (1950), art. 5; American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 7; African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 6; Arab Charter on Human Rights (2004), art. 14; Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), art. 9.
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 9(3); Human Rights Committee, General Comment No. 35: Liberty and Security of Person, UN Doc. CCPR/C/GC/35 (2014), para. 38; Report of the Working Group on Arbitrary Detention: Visit to Brazil, UN Doc. A/HRC/27/48/Add.3 (2014), para. 148(b); UN General Assembly, Resolution 45/110: United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules), UN Doc. A/RES/45/110 (1990), rule 6.1; UN General Assembly, Resolution 65/229: United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), UN Doc. A/RES/65/22 (2011), rule 58.
UN General Assembly, Resolution 45/110: United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules), UN Doc. A/RES/45/110 (1990), rule 6.2; see also Global Commission on HIV and the Law, Risks, Rights and Health: Supplement (2018), p. 34, rec. 10.
Human Rights Committee, General Comment No. 35: Liberty and Security of Person, UN Doc. CCPR/C/GC/35 (2014), para. 12.
Human Rights Committee, Communication No. 458/1991: Womah Mukong v. Cameroon, UN Doc. CCPR/C/51/D/458/1991 (1994), para. 9.8; Report of the Working Group on Arbitrary Detention, UN Doc. E/CN.4/2006/7 (2005), para. 64.
Human Rights Committee, Communication No. 305/1988: Hugo van Alphen v. The Netherlands, UN Doc. CCPR/C/39/D/305/1988 (1990), para. 5.8; Human Rights Committee, Communication No. 1502/2006: Marinich v. Belarus, UN Doc. CCPR/C/99/D/1502/2006 (2010), para. 10.4.
Report of the Working Group on Arbitrary Detention: United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court, UN Doc. A/HRC/30/37 (2015), principle 3 and guideline 1.
Report of the Working Group on Arbitrary Detention: United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court, UN Doc. A/HRC/30/37 (2015), principles 17–21 and guidelines 18–21.
Report of the Working Group on Arbitrary Detention: United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court, UN Doc. A/HRC/30/37 (2015), principle 16, para. 28.
Human Rights Committee, Communication No. 458/1991: Womah Mukong v. Cameroon, UN Doc. CCPR/C/51/D/458/1991 (1994), para. 9.8.
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 9(2, 3).
Human Rights Committee, General Comment No. 35: Liberty and Security of Person, UN Doc. CCPR/C/GC/35 (2014), para. 33.
Human Rights Committee, General Comment No. 35: Liberty and Security of Person, UN Doc. CCPR/C/GC/35 (2014), para. 34.
Report of the Working Group on Arbitrary Detention: Visit to Bhutan, UN Doc. A/HRC/42/39/Add.1 (2019), para. 73.
Report of the Working Group on Arbitrary Detention: Visit to Bhutan, UN Doc. A/HRC/42/39/Add.1 (2019), paras. 74, 93(b); Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 9.
Report of the Working Group on Arbitrary Detention: Visit to Bhutan, UN Doc. A/HRC/42/39/Add.1 (2019), para. 93(a, b, e); Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 10.
Subcommittee on Prevention of Torture, Visit to Mexico, UN Doc. CAT/OP/MEX/1 (2010), paras. 104, 182.
Subcommittee on Prevention of Torture, Visit to Mexico, UN Doc. CAT/OP/MEX/1 (2010), para. 104.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), paras. 12–16.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), paras. 11.
Report of the UN High Commissioner for Human Rights: Study on the Impact of the World Drug Problem on the Enjoyment of Human Rights, UN Doc. A/HRC/30/65 (2015), para. 36.
Report of the UN High Commissioner for Human Rights: Study on the Impact of the World Drug Problem on the Enjoyment of Human Rights, UN Doc. A/HRC/30/65 (2015), para. 35.
International Labour Organization, Office of the UN High Commissioner for Human Rights, UN Development Programme, et al., Joint Statement on Compulsory Drug Detention and Rehabilitation Centres (2012).
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/30/36 (2015), para. 60; see also Report of the Working Group on Arbitrary Detention, UN Doc. E/CN.4/2004/3 (2003), paras. 74, 87; Human Rights Committee, General Comment No. 35: Liberty and Security of Person, UN Doc. CCPR/C/GC/35 (2014), para. 15; European Court of Human Rights, Witold Litwa v. Poland, Application No. 26629/95, 4 April 2000, paras. 77–80.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/30/36 (2015), para. 59; Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc. A/68/295 (2013), paras. 40–42.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 99; Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/30/36 (2015), para. 59; Report of the Working Group on Arbitrary Detention: Visit to Sri Lanka, UN Doc. A/HRC/39/45/Add.2 (2019), paras. 54–59.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), paras. 84–89; Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/30/36 (2015), para. 59; Report of the Working Group on Arbitrary Detention: Visit to Brazil, UN Doc. A/HRC/27/48/Add.3 (2014), paras. 111–118; Report of the Working Group on Arbitrary Detention: Visit to the People’s Republic of China, UN Doc. E/CN.4/1998/44/Add.2 (1997), para. 85.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), paras. 84–80; Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/30/36 (2015), paras. 59, 74.
Report of the Working Group on Arbitrary Detention: Deliberation No. 7 on Issues Related to Psychiatric Detention, UN Doc. E/CN.4/2005/6 (2004), para. 47.
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/22/53 (2013), para. 87.
Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, UN Doc. A/65/255 (2010), paras. 30–39; Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health: Mission to Viet Nam, UN Doc. A/HRC/20/15/Add.2 (2012), para. 64(a).
Committee on the Rights of the Child, Concluding Observations: Cambodia, UN Doc. CRC/C/KHM/CO/2-3 (2011), paras. 38–39; Committee on the Rights of the Child, Concluding Observations: Viet Nam, UN Doc. CRC/C/VNM/CO/3-4 (2012), paras. 43–44.
Committee against Torture, Concluding Observations: Cambodia, UN Doc. CAT/C/KHM/CO/2 (2011), para. 20.
Human Rights Committee, Concluding Observations: Lao People’s Democratic Republic, UN Doc. CCPR/C/LAO/CO/1 (2019), para. 37.
Human Rights Committee, Concluding Observations: Viet Nam, UN Doc. CCPR/C/VNM/CO/3 (2019), para. 31.
Human Rights Committee, Concluding Observations: Viet Nam, UN Doc. CCPR/C/VNM/CO/R.3 (2019), para. 32.
Committee against Torture, Concluding Observations: Belarus, UN Doc. CAT/C/BLR/CO/5 (2018), paras. 23–24.
Committee against Torture, Concluding Observations: Rwanda, UN Doc. CAT/C/RWA/CO/2 (2017), para. 30.
Committee against Torture, Concluding Observations: Rwanda, UN Doc. CAT/C/RWA/CO/2 (2017), para. 31.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 17; Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/30/36 (2015), paras. 61–62; Report of the Working Group on Arbitrary Detention: Visit to Malyasia, UN Doc. A/HRC/16/47/Add.2 (2011), paras. 38–39, 41, 97, 109; UN Office on Drugs and Crime, Handbook on Strategies to Reduce Overcrowding in Prisons (2010), p. 95.
Committee on the Elimination of Racial Discrimination, Concluding Observations: United States of America, UN Doc. CERD/C/USA/CO/7-9 (2014), para. 20; Report of the Working Group on Arbitrary Detention: Visit to Nicaragua, UN Doc. A/HRC/4/40/Add.3 (2006), paras. 38, 87.
Human Rights Committee, Concluding Observations: Mauritius, UN Doc. CCPR/C/MUS/CO/5 (2017), paras. 28–29.
Committee against Torture: Concluding Observations: Mauritius, UN Doc. CAT/C/MUS/CO/4 (2017), paras. 21, 22.
Inter-American Commission on Human Rights, Measures Aimed at Reducing the Use of Pretrial Detention in the Americas (2017), para. 90.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 17.
Report of the Working Group on Arbitrary Detention: Visit to Nicaragua, UN Doc. A/HRC/4/40/Add.3 (2002), para. 102(c).
Annual Report of the Working Group on Arbitrary Detention, UN Doc. E/CN.4/2006/7 (2006), para. 66.
Annual Report of the Working Group on Arbitrary Detention, UN Doc. E/CN.4/2006/7 (2006), para. 66; Report of the Working Group on Arbitrary Detention: Visit to Canada, UN Doc. E/CN.4/2006/7/Add.2, para. 63.
Annual Report of the Working Group on Arbitrary Detention, UN Doc. E/CN.4/2006/7 (2006), para. 66; Report of the Working Group on Arbitrary Detention: Visit to the United States of America, UN Doc. A/HRC/36/37/Add.2 (2017), para. 52.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 18; Report of the Working Group on Arbitrary Detention: Visit to the United States of America, UN Doc. A/HRC/36/37/Add.2 (2017), para. 52.
Report of the Working Group on Arbitrary Detention: Visit Canada, UN Doc. E/CN.4/2006/7/Add.2 (2005), para. 92(b).
Report of the Working Group on Arbitrary Detention: Visit to Mexico, UN Doc. E/CN.4/2003/8/Add.3 (2002), paras. 44, 72(a); Report of the Working Group on Arbitrary Detention: Visit to Honduras, UN Doc. A/HRC/4/40/Add.4 (2006), paras. 47, 87; Report of the Working Group on Arbitrary Detention: Visit to El Salvador, UN Doc. A/HRC/22/44/Add.2 (2013), para. 125.
UN General Assembly, Resolution 45/110: United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules), UN Doc. A/RES/45/110 (1990), rule 8.1.
Report of the Working Group on Arbitrary Detention: Visit to Brazil, UN Doc. A/HRC/27/48/Add.3 (2014), para. 148(d); Human Rights Committee, General Comment No. 35: Liberty and Security of Person, UN Doc. CCPR/C/GC/35 (2014), paras. 36–38; Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/19/57 (2011), para. 80; Report of the Working Group on Arbitrary Detention: Visit to El Salvador, UN Doc. A/HRC/22/44/Add.2 (2013), para. 126; UN General Assembly, Resolution 45/110: United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules), UN Doc. A/RES/45/110 (1990), rule 8.2.
Report of the Working Group on Arbitrary Detention: Visit to Nicaragua, UN Doc. A/HRC/4/40/Add.3 (2002), paras. 64–65, 86–87.
Report of the Special Rapporteur on the Independence of Judges and Lawyers, Leandro Despouy: Mission to Maldives, UN Doc. A/HRC/4/25/Add.2 (2007), paras. 55, 58–59.
Human Rights Committee, Concluding Observations: Mauritius, UN Doc. CCPR/CO/83/MUS (2005), para. 15.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), paras. 44–48; Report of the Working Group on Arbitrary Detention: Visit to Mexico, UN Doc. E/CN.4/2003/8/Add.3 (2002), para. 44; Report of the Working Group on Arbitrary Detention: Visit to Nicaragua, UN Doc. A/HRC/4/40/Add.3 (2002), para. 87.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 44; Report of the Working Group on Arbitrary Detention: Visit to Mexico, UN Doc. E/CN.4/2003/8/Add.3 (2002), para. 72(a); Report of the Working Group on Arbitrary Detention: Visit to Nicaragua, UN Doc. A/HRC/4/40/Add.3 (2002), para. 102(c).
Committee on Economic, Social and Cultural Rights, Concluding Observations: Estonia, UN Doc. E/C.12/EST/CO/3 (2019), para. 44(c).
Report of the Working Group on Arbitrary Detention: Visit to Nicaragua, UN Doc. A/HRC/4/40/Add.3 (2002), para. 102(c).
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: Visit to Serbia and Kosovo, UN Doc. A/HRC/40/59/Add.1 (2019), para. 105(d); Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on His Mission to Brazil, UN Doc. A/HRC/31/57/Add.4 (2016), para. 147(f); Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: Mission to Gambia, UN Doc. A/HRC/28/68/Add.4 (2015), para. 107(f).
Report of the Working Group on Arbitrary Detention: Visit to Nicaragua, UN Doc. A/HRC/4/40/Add.3 (2006), para. 102(c); Report of the UN High Commissioner for Human Rights: Study on the Impact of the World Drug Problem on the Enjoyment of Human Rights, UN Doc. A/HRC/30/65 (2015), para. 43; Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 82.
Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, UN Doc. A/65/255 (2010), para. 32; Report of the Special Rapporteur on the Rights of Persons with Disabilities, UN Doc. A/73/161 (2018), paras. 9, 14–15.
Report of the Working Group on Arbitrary Detention: Visit to Canada, UN Doc. E/CN.4/2006/7/Add.2 (2005), para. 57; Report of the High Commissioner for Human Rights on Implementation of the Joint Commitment to Effectively Addressing and Countering the World Drug Problem with Regard to Human Rights, UN Doc. A/HRC/39/39 (2018), paras. 53–54.
Report of the Working Group on Arbitrary Detention: Visit to the People’s Republic of China, UN Doc. E/CN.4/1998/44/Add.2 (1997), paras. 81, 97–99; Report of the Working Group on Arbitrary Detention: Visit to Brazil, UN Doc. A/HRC/27/48/Add.3 (2014), paras. 111–119; Report of the Working Group on Arbitrary Detention: Visit to Malaysia, UN Doc. A/HRC/16/47/Add.2 (2011), paras. 27, 38–39.
Report of the Working Group on Arbitrary Detention: Visit to Sri Lanka, UN Doc. A/HRC/39/45/Add.2 (2018), para. 88; see also Global Commission on HIV and the Law, Risks, Rights and Health (2012), rec. 3.1.4.
Report of the Working Group on Arbitrary Detention, UN Doc. E/CN.4/2004/3 (2003), para. 87.
Committee on the Rights of Persons with Disabilities, Concluding Observations: Peru, UN Doc. CRPD/C/PER/CO/1 (2012), para. 28.
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 36; Convention on Psychotropic Substances, 1019 UNTS 14956 (1971), art. 22; Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 3.
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 39; Convention on Psychotropic Substances, 1019 UNTS 14956 (1971), art. 23.
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 24.
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 3(4)(c, d).
UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), para. 4(j).
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]
Extradition
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.
Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), arts. 10, 11; International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 14; [European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (1950), art. 6; American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 8; African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 7; Arab Charter on Human Rights (2004), art. 13; see generally Human Rights Committee, General Comment No. 32: Right to Equality before Courts and Tribunals and to a Fair Trial, UN Doc. CCPR/C/GC/32 (2007).
UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), para. 4(o).
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 14(3)(d); [European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (1950), art. 6(3)(c); American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 8(2)(d); Arab Charter on Human Rights (2004), art. 16(4); African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 7(c); see also African Commission on Human and Peoples’ Rights, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2003), sec. A, para. 2(f), secs. G–J.
UN General Assembly, Resolution 67/187: United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, UN Doc. A/RES/67/187 (2012), annex, para. 20; see also [European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (1950), art. 6(3); American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 8(2)(d); African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 7(c); Arab Charter on Human Rights (2004), art. 13.
UN General Assembly, Resolution 67/187: United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, UN Doc. A/RES/67/187 (2012), annex, paras. 20, 32.
Human Rights Committee, General Comment No. 32: Right to Equality before Courts and Tribunals and to a Fair Trial, UN Doc. CCPR/C/GC/32 (2007), para. 38.
Human Rights Committee, General Comment No. 32: Right to Equality before Courts and Tribunals and to a Fair Trial, UN Doc. CCPR/C/GC/32 (2007), para. 38.
Human Rights Committee, General Comment No. 32: Right to Equality before Courts and Tribunals and to a Fair Trial, UN Doc. CCPR/C/GC/32 (2007), para. 10.
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, UN Doc. A/HRC/13/39/Add.5 (2010), paras. 104, 106.
UN General Assembly, Resolution 67/187: United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, UN Doc. A/RES/67/187 (2012), annex, paras. 20, 32.
See International Court of Justice, Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America), Judgement of 31 March 2004.
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 14(2); [European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (1950), art. 6(2); American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 8(2); Arab Charter on Human Rights (2004), art. 16; African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 7(1)(b).
R v. Oakes [1986] 1 SCR 103 (Canada); S v. Bhulwana, S v. Gwadiso [1995] ZACC 11 (South Africa); R v. Lambert [2001] UKHL 37 (United Kingdom); HKSAR v. Hung Chan Wa [2006] HKCFA 85 (Hong Kong SAR); Hansen v. R [2007] NZSC 7 (New Zealand); R v. Momcilovic [2010] VSCA 50 (Australia).
Human Rights Committee, Concluding Observations: Georgia, UN Doc. CCPR/C/GEO/CO/4 (2014), para. 15.
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 14(3)(g); American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 8(2)(g); Arab Charter on Human Rights (2004), art. 16(6); see also European Court of Human Rights, Guide on Article 6 of the European Convention on Human Rights: Right to Fair Trial (Criminal Limb) (2019), sec. II; African Commission on Human and Peoples’ Rights, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2003), sec. M, para. 7(d), sec. N, para. 6(d), sec. O, para. n(6).
Human Rights Committee, General Comment No. 32: Right to Equality before Courts and Tribunals and to a Fair Trial, UN Doc. CCPR/C/GC/32 (2007), para. 41; see also Human Rights Committee, Concluding Observations: Nepal, UN Doc. CCPR/C/NPL/CO/2 (2007), para. 16; Human Rights Committee, Concluding Observations: France, UN Doc. CCPR/C/FRA/CO/4 (2008), para. 14.
UN General Assembly, Resolution 67/187: United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, UN Doc. A/RES/67/187 (2012), annex, para. 43(a).
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), paras. 33–34; see, e.g., the Special Criminal Court in the Republic of Ireland, a juryless court with restricted rules of evidence with a remit to try organised crime and drugs cases. Irish Council for Civil Liberties, ‘Special Criminal Court Decision “Flouts Rule of Law” says ICCL’, 29 October 2015, https://www.iccl.ie/press-release/special-criminal-court-decision-flouts-rule-of-law-says-iccl/#:~:text=Ireland's%20independent%20human%20rights%20watchdog,peacetime%20is%20a%20violation%20of; see also the Revolutionary Courts in Iran, which try drug trafficking cases and even issue death sentences. Iran Human Rights and Together against the Death Penalty, Annual Report on the Death Penalty in Iran, 2017 (2018), pp. 5, 12.
See Human Rights Committee, Communication No. 1172:/2003: Madani v. Algeria, UN Doc. CCPR/C/89/D/1172/2003 (2007), para. 8.7; Human Rights Committee, Concluding Observations: Chile, UN Doc. CCPR/C/CHL/CO/5 (2007), para. 12; Human Rights Committee, Concluding Observations: Tajikistan, UN Doc. CCPR/CO/84/TJK (2005), para. 18; Human Rights Committee, Concluding Observations: Ecuador, UN Doc. CCPR/C/ECU/CO/5 (2009), para. 5; Committee on the Rights of the Child, Concluding Observations: Colombia, UN Doc. CRC/C/COL/CO/3 (2006), para. 44; Report of the Special Rapporteur on the Independence of Judges and Lawyers, Gabriela Knaul, UN Doc. A/68/285 (2013), paras. 101–102; Report of the Special Rapporteur on the Independence of Judges and Lawyers, Leandro Despouy, UN Doc. A/61/384 (2006), paras. 22–25; Report of the Working Group on Arbitrary Detention, UN Doc. E/CN.4/2004/3 (2003), para. 67; see also Working Group on Arbitrary Detention: Opinion No. 27/2008 (Egypt), UN Doc. A/HRC/13/30/Add.1 (2010), para. 40.
Human Rights Committee, General Comment No. 32: Right to Equality before Courts and Tribunals and to a Fair Trial, UN Doc. CCPR/C/GC/32 (2007), para. 22.
Human Rights Committee, General Comment No. 32: Right to Equality before Courts and Tribunals and to a Fair Trial, UN Doc. CCPR/C/GC/32 (2007), para. 22.
Report of the Special Rapporteur on the Independence of Judges and Lawyers, Gabriela Knaul, UN Doc. A/68/285 (2013), paras. 101–102.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 126(i).
Human Rights Committee, Concluding Observations: Rwanda, UN Doc. CCPR/C/RWA/CO/4 (2016), paras. 33, 34; Human Rights Committee, Concluding Observations: Kyrgyzstan, UN Doc. CCPR/C/KGZ/CO/2 (2014), para. 20; Human Rights Committee, Concluding Observations: Bolivia, UN Doc. CCPR/C/BOL/CO/3 (2013), paras. 12–13; Committee against Torture, Concluding Observations: Mexico, UN Doc. CAT/C/MEX/CO/5-6 (2012), para. 18; Report of the Special Rapporteur on the Independence of Judges and Lawyers on Her Mission to Tunisia, UN Doc. A/HRC/29/26/Add.3 (2015), para. 76; Report of the Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-recurrence, Pablo de Greiff: Mission to Tunisia, UN Doc. A/HRC/24/42/Add.1 (2013), para. 51; Report of the Special Rapporteur on the Independence of Judges and Lawyers, Leandro Despouy: Mission to the Democratic Republic of the Congo, UN Doc. A/HRC/8/4/Add.2 (2008), para. 71.
Human Rights Committee, Concluding Observations: Kyrgyzstan, UN Doc. CCPR/C/KGZ/CO/2 (2014), para. 20; Committee against Torture, Concluding Observations: Lebanon, UN Doc. CAT/C/LBN/CO/1 (2017), para. 35.
Committee against Torture, Concluding Observations: Cameroon, UN Doc. CAT/C/CMR/CO/5 (2017), para. 28; Committee against Torture, Concluding Observations: Lebanon, UN Doc. CAT/C/LBN/CO/1 (2017), para. 35; Committee against Torture, Concluding Observations: Pakistan, UN Doc. CAT /C/PAK/CO/1 (2017), para. 11(c); Human Rights Committee, Concluding Observations: Rwanda, UN Doc. CCPR/C/RWA/CO/4 (2016), para. 34; Human Rights Committee, Concluding Observations: Bolivia, UN Doc. CCPR/C/BOL/CO/3 (2013), para. 13; Committee against Torture, Concluding Observations: Mexico, UN Doc. CAT/C/MEX/CO/5-6 (2012), para. 18; Committee against Torture, Concluding Observations: Colombia, UN Doc. CAT/C/COL/CO/4 (2010), para. 16; Report of the Special Rapporteur on the Independence of Judges and Lawyers on Her Mission to Tunisia, UN Doc. A/HRC/29/26/Add.3 (2015), para. 113; Report of the Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-recurrence, Pablo de Greiff: Mission to Tunisia, UN Doc. A/HRC/24/42/Add.1 (2013), para. 85(c); Report of the Special Rapporteur on Violence against Women, Its Causes and Consequences, Yakin Ertürk: Mission to the Democratic Republic of the Congo, UN Doc. A/HRC/7/6/Add.4 (2008), para. 108(b).
UN Human Rights Special Procedures, ‘Drug Courts Pose Dangers of Punitive Approaches Encroaching on Medical and Health Care Matters, UN Experts Say’, 20 March 2019, https://www.unodc.org/documents/commissions/CND/2019/Contributions/UN_Entities/InfoNote20March2019.pdf.
UN Human Rights Special Procedures, ‘Drug Courts Pose Dangers of Punitive Approaches Encroaching on Medical and Health Care Matters, UN Experts Say’, 20 March 2019, https://www.unodc.org/documents/commissions/CND/2019/Contributions/UN_Entities/InfoNote20March2019.pdf.
Report of the Working Group on Arbitrary Detention: Visit to Canada, UN Doc. E/CN.4/2006/7/Add.2 (2005), para. 57; Report of the High Commissioner for Human Rights on Implementation of the Joint Commitment to Effectively Addressing and Countering the World Drug Problem with Regard to Human Rights, UN Doc. A/HRC/39/39 (2018), paras. 53–54.
Report of the High Commissioner for Human Rights on Implementation of the Joint Commitment to Effectively Addressing and Countering the World Drug Problem with Regard to Human Rights, UN Doc. A/HRC/39/39 (2018), para. 54.
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 14, para. 3(c); [European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (1950), art. 6; American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 8(1); African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 7(1)(d); Arab Charter on Human Rights (2004), art. 14(5).
See Report of the Working Group on Arbitrary Detention: Visit to the People’s Republic of China, UN Doc. E/CN.4/1998/44/Add.2 (1997), paras. 81, 97–99; Report of the Working Group on Arbitrary Detention: Visit to Brazil, UN Doc. A/HRC/27/48/Add.3 (2014), paras. 111–119.
Inter-American Commission on Human Rights, Measures Aimed at Reducing the Use of Pretrial Detention in the Americas (2017), para. 90.
Office of the UN High Commissioner for Human Rights, Human Rights Implications of Over Incarceration and Overcrowding: Report of the United Nations High Commissioner for Human Rights, UN Doc. A/HRC/30/19 (2015).
Report of the Working Group on Arbitrary Detention, UN Doc. E/CN.4/2005/6 (2004), para. 68.
UN General Assembly, Resolution 45/116: Model Treaty on Extradition, UN Doc. A/RES/45/116 (1990), annex, art. 3(f).
European Court of Human Rights, Othman v. United Kingdom, Application No. 8139/09, 12 January 2012, para. 258.
European Court of Human Rights, Othman v. United Kingdom, Application No. 8139/09, 12 January 2012, paras. 259, 263, 267.
Committee against Torture, Communication No. 233/2003: Agiza v. Sweden, UN Doc. CAT/C/34/D/233/2003 (2005), paras. 13.4–13.5.
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 3.
Children have the right to receive accurate and objective information about drugs and drug-related harm, the right to protection from harmful misinformation, and the right to privacy.
In accordance with this right, States should:
i. Undertake evidence-based and human rights-compliant prevention measures, including in schools.
ii. Avoid excluding children from school due to risk-taking behaviours and take measures to ensure their access to education.
iii. Avoid random drug testing, sniffer dogs, and strip searches in schools.
The Committee on the Rights of the Child has repeatedly called on States to put in place effective drug prevention measures pursuant to the Convention on the Rights of the Child, including in schools.[627] Scare tactics and misinformation are counterproductive and should not be employed,[628] which is why the Committee consistently calls for ‘accurate and objective’ information.[629] The UN General Assembly Special Session 2016 Outcome Document also requests that States take practical prevention measures for children and youth by providing ‘accurate information’.[630] The UN Office on Drugs and Crime has developed international prevention standards that incorporate key ethical considerations and a review of the evidence.[631] These have been endorsed by the Commission on Narcotic Drugs.[632]
Random school drug testing is ineffective and is therefore an unwarranted infringement of children’s right to privacy under the Convention on the Rights of the Child.[633] The UN Office on Drugs and Crime’s prevention standards recommend avoiding such testing.[634] Given the absence of evidence of effectiveness of the use of sniffer dogs, this too should be avoided on the same rights-based grounds. Strip searches, meanwhile, have been found to be an unconstitutional violation of the right to privacy in some jurisdictions.[635]
Children have the right to education under the Convention on the Rights of the Child.[636] Retention in school is an important form of protection from a range of health harms, while exclusion from school has been identified as a risk factor for the initiation or escalation of drug use.
That is, pursuant to article 33 of the Convention on the Rights of the Child. See, e.g., Committee on the Rights of the Child, Concluding Observations: Germany, UN Doc. CRC/C/DEU/CO/3-4 (2014), para. 61; Committee on the Rights of the Child, Concluding Observations: Saint Lucia, UN Doc. CRC/C/LCA/CO/2-4 (2014), para. 49; Committee on the Rights of the Child, Concluding Observations: Bosnia and Herzegovina, UN Doc. CRC/C/BIH/CO/5-6 (2019), para. 35(b).
Commission on Narcotic Drugs, Youth and Drugs: A Global Overview, UN Doc. E/CN.7/1999/8 (1999), para. 65(f).
See, e.g., Committee on the Rights of the Child, Concluding Observations: Guyana, UN Doc. CRC/C/GUY/CO/2-4 (2013), para. 50(d); Committee on the Rights of the Child, Concluding Observations: Albania, UN Doc. CRC/C/ALB/CO/2-4 (2012), para. 64(b); Committee on the Rights of the Child, Concluding Observations: Romania, UN Doc. CRC/C/ROM/CO/4 (2009), para. 71; Committee on the Rights of the Child, Concluding Observations: Sweden, UN Doc. CRC/C/SWE/CO/4 (2009), para. 49(a); Committee on the Rights of the Child, Concluding Observations: Bulgaria, UN Doc. CRC/C/BGR/CO/2 (2008), para. 50; Concluding Observations: Micronesia, UN Doc. CRC/C/FSM/CO/2 (2020), para. 55(d).
UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), para. 1(a).
UN Office on Drugs and Crime, International Standards on Drug Use Prevention, 2nd ed. (2018).
Commission on Narcotic Drugs, Resolution 59/6: Promoting Prevention Strategies and Policies (2016).
Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 16.
UN Office on Drugs and Crime, International Standards on Drug Use Prevention, 2nd ed. (2018), p. 29.
Safford Unified School District v. Redding, 557 US 364, 2009; see also Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 16.
Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 28.
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]
Extradition
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.
Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), arts. 10, 11; International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 14; [European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (1950), art. 6; American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 8; African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 7; Arab Charter on Human Rights (2004), art. 13; see generally Human Rights Committee, General Comment No. 32: Right to Equality before Courts and Tribunals and to a Fair Trial, UN Doc. CCPR/C/GC/32 (2007).
UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), para. 4(o).
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 14(3)(d); [European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (1950), art. 6(3)(c); American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 8(2)(d); Arab Charter on Human Rights (2004), art. 16(4); African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 7(c); see also African Commission on Human and Peoples’ Rights, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2003), sec. A, para. 2(f), secs. G–J.
UN General Assembly, Resolution 67/187: United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, UN Doc. A/RES/67/187 (2012), annex, para. 20; see also [European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (1950), art. 6(3); American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 8(2)(d); African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 7(c); Arab Charter on Human Rights (2004), art. 13.
UN General Assembly, Resolution 67/187: United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, UN Doc. A/RES/67/187 (2012), annex, paras. 20, 32.
Human Rights Committee, General Comment No. 32: Right to Equality before Courts and Tribunals and to a Fair Trial, UN Doc. CCPR/C/GC/32 (2007), para. 38.
Human Rights Committee, General Comment No. 32: Right to Equality before Courts and Tribunals and to a Fair Trial, UN Doc. CCPR/C/GC/32 (2007), para. 38.
Human Rights Committee, General Comment No. 32: Right to Equality before Courts and Tribunals and to a Fair Trial, UN Doc. CCPR/C/GC/32 (2007), para. 10.
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, UN Doc. A/HRC/13/39/Add.5 (2010), paras. 104, 106.
UN General Assembly, Resolution 67/187: United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, UN Doc. A/RES/67/187 (2012), annex, paras. 20, 32.
See International Court of Justice, Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America), Judgement of 31 March 2004.
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 14(2); [European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (1950), art. 6(2); American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 8(2); Arab Charter on Human Rights (2004), art. 16; African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 7(1)(b).
R v. Oakes [1986] 1 SCR 103 (Canada); S v. Bhulwana, S v. Gwadiso [1995] ZACC 11 (South Africa); R v. Lambert [2001] UKHL 37 (United Kingdom); HKSAR v. Hung Chan Wa [2006] HKCFA 85 (Hong Kong SAR); Hansen v. R [2007] NZSC 7 (New Zealand); R v. Momcilovic [2010] VSCA 50 (Australia).
Human Rights Committee, Concluding Observations: Georgia, UN Doc. CCPR/C/GEO/CO/4 (2014), para. 15.
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 14(3)(g); American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 8(2)(g); Arab Charter on Human Rights (2004), art. 16(6); see also European Court of Human Rights, Guide on Article 6 of the European Convention on Human Rights: Right to Fair Trial (Criminal Limb) (2019), sec. II; African Commission on Human and Peoples’ Rights, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2003), sec. M, para. 7(d), sec. N, para. 6(d), sec. O, para. n(6).
Human Rights Committee, General Comment No. 32: Right to Equality before Courts and Tribunals and to a Fair Trial, UN Doc. CCPR/C/GC/32 (2007), para. 41; see also Human Rights Committee, Concluding Observations: Nepal, UN Doc. CCPR/C/NPL/CO/2 (2007), para. 16; Human Rights Committee, Concluding Observations: France, UN Doc. CCPR/C/FRA/CO/4 (2008), para. 14.
UN General Assembly, Resolution 67/187: United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, UN Doc. A/RES/67/187 (2012), annex, para. 43(a).
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), paras. 33–34; see, e.g., the Special Criminal Court in the Republic of Ireland, a juryless court with restricted rules of evidence with a remit to try organised crime and drugs cases. Irish Council for Civil Liberties, ‘Special Criminal Court Decision “Flouts Rule of Law” says ICCL’, 29 October 2015, https://www.iccl.ie/press-release/special-criminal-court-decision-flouts-rule-of-law-says-iccl/#:~:text=Ireland's%20independent%20human%20rights%20watchdog,peacetime%20is%20a%20violation%20of; see also the Revolutionary Courts in Iran, which try drug trafficking cases and even issue death sentences. Iran Human Rights and Together against the Death Penalty, Annual Report on the Death Penalty in Iran, 2017 (2018), pp. 5, 12.
See Human Rights Committee, Communication No. 1172:/2003: Madani v. Algeria, UN Doc. CCPR/C/89/D/1172/2003 (2007), para. 8.7; Human Rights Committee, Concluding Observations: Chile, UN Doc. CCPR/C/CHL/CO/5 (2007), para. 12; Human Rights Committee, Concluding Observations: Tajikistan, UN Doc. CCPR/CO/84/TJK (2005), para. 18; Human Rights Committee, Concluding Observations: Ecuador, UN Doc. CCPR/C/ECU/CO/5 (2009), para. 5; Committee on the Rights of the Child, Concluding Observations: Colombia, UN Doc. CRC/C/COL/CO/3 (2006), para. 44; Report of the Special Rapporteur on the Independence of Judges and Lawyers, Gabriela Knaul, UN Doc. A/68/285 (2013), paras. 101–102; Report of the Special Rapporteur on the Independence of Judges and Lawyers, Leandro Despouy, UN Doc. A/61/384 (2006), paras. 22–25; Report of the Working Group on Arbitrary Detention, UN Doc. E/CN.4/2004/3 (2003), para. 67; see also Working Group on Arbitrary Detention: Opinion No. 27/2008 (Egypt), UN Doc. A/HRC/13/30/Add.1 (2010), para. 40.
Human Rights Committee, General Comment No. 32: Right to Equality before Courts and Tribunals and to a Fair Trial, UN Doc. CCPR/C/GC/32 (2007), para. 22.
Human Rights Committee, General Comment No. 32: Right to Equality before Courts and Tribunals and to a Fair Trial, UN Doc. CCPR/C/GC/32 (2007), para. 22.
Report of the Special Rapporteur on the Independence of Judges and Lawyers, Gabriela Knaul, UN Doc. A/68/285 (2013), paras. 101–102.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 126(i).
Human Rights Committee, Concluding Observations: Rwanda, UN Doc. CCPR/C/RWA/CO/4 (2016), paras. 33, 34; Human Rights Committee, Concluding Observations: Kyrgyzstan, UN Doc. CCPR/C/KGZ/CO/2 (2014), para. 20; Human Rights Committee, Concluding Observations: Bolivia, UN Doc. CCPR/C/BOL/CO/3 (2013), paras. 12–13; Committee against Torture, Concluding Observations: Mexico, UN Doc. CAT/C/MEX/CO/5-6 (2012), para. 18; Report of the Special Rapporteur on the Independence of Judges and Lawyers on Her Mission to Tunisia, UN Doc. A/HRC/29/26/Add.3 (2015), para. 76; Report of the Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-recurrence, Pablo de Greiff: Mission to Tunisia, UN Doc. A/HRC/24/42/Add.1 (2013), para. 51; Report of the Special Rapporteur on the Independence of Judges and Lawyers, Leandro Despouy: Mission to the Democratic Republic of the Congo, UN Doc. A/HRC/8/4/Add.2 (2008), para. 71.
Human Rights Committee, Concluding Observations: Kyrgyzstan, UN Doc. CCPR/C/KGZ/CO/2 (2014), para. 20; Committee against Torture, Concluding Observations: Lebanon, UN Doc. CAT/C/LBN/CO/1 (2017), para. 35.
Committee against Torture, Concluding Observations: Cameroon, UN Doc. CAT/C/CMR/CO/5 (2017), para. 28; Committee against Torture, Concluding Observations: Lebanon, UN Doc. CAT/C/LBN/CO/1 (2017), para. 35; Committee against Torture, Concluding Observations: Pakistan, UN Doc. CAT /C/PAK/CO/1 (2017), para. 11(c); Human Rights Committee, Concluding Observations: Rwanda, UN Doc. CCPR/C/RWA/CO/4 (2016), para. 34; Human Rights Committee, Concluding Observations: Bolivia, UN Doc. CCPR/C/BOL/CO/3 (2013), para. 13; Committee against Torture, Concluding Observations: Mexico, UN Doc. CAT/C/MEX/CO/5-6 (2012), para. 18; Committee against Torture, Concluding Observations: Colombia, UN Doc. CAT/C/COL/CO/4 (2010), para. 16; Report of the Special Rapporteur on the Independence of Judges and Lawyers on Her Mission to Tunisia, UN Doc. A/HRC/29/26/Add.3 (2015), para. 113; Report of the Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-recurrence, Pablo de Greiff: Mission to Tunisia, UN Doc. A/HRC/24/42/Add.1 (2013), para. 85(c); Report of the Special Rapporteur on Violence against Women, Its Causes and Consequences, Yakin Ertürk: Mission to the Democratic Republic of the Congo, UN Doc. A/HRC/7/6/Add.4 (2008), para. 108(b).
UN Human Rights Special Procedures, ‘Drug Courts Pose Dangers of Punitive Approaches Encroaching on Medical and Health Care Matters, UN Experts Say’, 20 March 2019, https://www.unodc.org/documents/commissions/CND/2019/Contributions/UN_Entities/InfoNote20March2019.pdf.
UN Human Rights Special Procedures, ‘Drug Courts Pose Dangers of Punitive Approaches Encroaching on Medical and Health Care Matters, UN Experts Say’, 20 March 2019, https://www.unodc.org/documents/commissions/CND/2019/Contributions/UN_Entities/InfoNote20March2019.pdf.
Report of the Working Group on Arbitrary Detention: Visit to Canada, UN Doc. E/CN.4/2006/7/Add.2 (2005), para. 57; Report of the High Commissioner for Human Rights on Implementation of the Joint Commitment to Effectively Addressing and Countering the World Drug Problem with Regard to Human Rights, UN Doc. A/HRC/39/39 (2018), paras. 53–54.
Report of the High Commissioner for Human Rights on Implementation of the Joint Commitment to Effectively Addressing and Countering the World Drug Problem with Regard to Human Rights, UN Doc. A/HRC/39/39 (2018), para. 54.
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 14, para. 3(c); [European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (1950), art. 6; American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 8(1); African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 7(1)(d); Arab Charter on Human Rights (2004), art. 14(5).
See Report of the Working Group on Arbitrary Detention: Visit to the People’s Republic of China, UN Doc. E/CN.4/1998/44/Add.2 (1997), paras. 81, 97–99; Report of the Working Group on Arbitrary Detention: Visit to Brazil, UN Doc. A/HRC/27/48/Add.3 (2014), paras. 111–119.
Inter-American Commission on Human Rights, Measures Aimed at Reducing the Use of Pretrial Detention in the Americas (2017), para. 90.
Office of the UN High Commissioner for Human Rights, Human Rights Implications of Over Incarceration and Overcrowding: Report of the United Nations High Commissioner for Human Rights, UN Doc. A/HRC/30/19 (2015).
Report of the Working Group on Arbitrary Detention, UN Doc. E/CN.4/2005/6 (2004), para. 68.
UN General Assembly, Resolution 45/116: Model Treaty on Extradition, UN Doc. A/RES/45/116 (1990), annex, art. 3(f).
European Court of Human Rights, Othman v. United Kingdom, Application No. 8139/09, 12 January 2012, para. 258.
European Court of Human Rights, Othman v. United Kingdom, Application No. 8139/09, 12 January 2012, paras. 259, 263, 267.
Committee against Torture, Communication No. 233/2003: Agiza v. Sweden, UN Doc. CAT/C/34/D/233/2003 (2005), paras. 13.4–13.5.
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 3.
Women have the equal right to an adequate standard of living, including the right to food, clothing, and housing. This applies to women involved in the drug trade and dependent on illicit drug economies.
In accordance with this right, States should:
i. Develop specific, viable, and sustainable economic alternatives for women who are particularly at risk of exploitation in the illicit drug economy, including women who use drugs, poor women (whether urban or rural), and women from indigenous and ethnic minority communities.
ii. Take all necessary legislative, administrative, and policy measures to ensure that women’s specific needs and circumstances are taken into account in efforts to address involvement in the drug trade and dependence on illicit drug economies.
iii. Adhere to international standards in all efforts to address and respond to drug-related criminality among women.
iv. Make available gender-specific interventions that aim primarily at diversion from the criminal justice system, and address the underlying factors leading to women coming into contact with the criminal justice system.
With regard to sentencing for drug-related offences, States should:
v. Legislate for and prioritise non-custodial sentences for pregnant women where possible and appropriate.
vi. Ensure that courts have the power to consider mitigating factors in light of women’s caretaking responsibilities, such as lack of criminal history and relative non-severity and nature of the criminal conduct.
vii. Ensure the earliest possible transfer of non-resident foreign-national women prisoners, following the request or informed consent of the woman concerned.
The Committee on the Elimination of Discrimination against Women has expressed concern about the significant increase in the already substantial number of women and girls imprisoned for drug-related offences[719] and in preventive detention on drug-related charges,[720] as well as the limited access to gender-specific health care for these individuals.[721] The Committee has recommended that States enhance economic opportunities for women at risk of involvement in drug trafficking and take measures to reduce the number of women in conflict with the law for drug-related reasons, including through programmes addressing the causes of criminality.[722] It has also recommended that prison reform consider a gender perspective; that greater use of non-custodial sanctions and measures be made; that judicial procedures avoid the overuse of preventive measures; and that adequate health care facilities be provided for women in detention centres.[723]
The Committee on Economic, Social and Cultural Rights has raised concern that predominantly punitive approaches to drug abuse affect women in particular and have ‘contributed to the disproportionate increase in the size of the population deprived of liberty in overcrowded prisons and in poor conditions’.[724]
The Committee against Torture has likewise raised concern about the impact of drug control legislation on the size of the female prison population.[725] Indeed, the Special Rapporteur on violence against women has raised concern that ‘domestic and international anti-drug policies are a leading cause of rising rates of incarceration of women around the world’,[726] observing that women in some jurisdictions are over-represented among low-level, non-violent drug offenders; often have minimal or no previous criminal history; and are generally not principal figures in criminal organisations or activities. Despite this, they have received similar sentences as ‘high level’ drug offenders,[727] or in some cases, serve prison time while more serious offenders enter into plea bargains and avoid imprisonment.[728] The Special Rapporteur has also found that incarceration rates among ethnic minority women are much higher than those among other women.[729] The Special Rapporteur on minority issues has highlighted the large increase in the number of women incarcerated for drug-related crimes, noting in particular the impact on women of African descent, who are highly over-represented in prison populations.[730]
The Special Rapporteur on violence against women has called on States to ensure that sentencing policies reflect an understanding of women’s levels of culpability and control with respect to drug offences and to review laws holding women responsible for association with people involved in drug activities, even where they have little or no knowledge of these activities. The Special Rapporteur has also recommended that gender-sensitive drug treatment programmes be provided in women’s prisons.[731] The UN Working Group on Arbitrary Detention has raised concern that poor and otherwise marginalised women, particularly mothers and housewives, often bear the brunt of harsh anti-drug legislation, facing incarceration for minor drug crimes while those responsible for more serious offences, if caught, can use their financial resources to evade punishment[732] and that women’s lack of access to legal representation and negative stereotypes about women charged with drug-related offenses may limit opportunities to seek plea bargains or reduced sentences.[733] The Working Group also has raised concern that some women incarcerated for drug-related offences have been coerced into drug-related activities by husbands or partners, or for drugs in their home that belong to their partners, and that pregnant woman convicted of drug-related offences cannot benefit from the alternatives to incarceration available to those convicted of other crimes.[734]
The UN Working Group on the Issue of Discrimination against Women in Law and in Practice has raised concern about the drastic rise in the number of women in prison globally and has noted that in some parts of the world, this increase can be attributed mainly to women being convicted of drug-related offences.[735] The Working Group has observed that proportionally, women are more likely than men to be incarcerated for drug-related crimes and that while they tend to be engaged at lower levels of the drug trade, they may receive harsher sentences than those responsible for more serious offences.[736] This disparity is due to the fact that they may have fewer opportunities to negotiate for lesser punishments, given their low status within criminal drug networks and because in some jurisdictions, the work that women do, such as transporting drugs, is subject to harsher punishment than offences committed by people at higher levels of these networks.[737] The Working Group also has raised concern about the disproportionate criminalisation of indigenous and racial minority women among the lower levels of drug networks.[738]
The Working Group on the Issue of Discrimination against Women in Law and in Practice has highlighted that violence is often used as a tool to coerce women to become drug couriers.[739] Women who are engaged in the drug trade or who use drugs may be reluctant to report such violence to law enforcement, for fear that doing so will subject them to further violence or discrimination.[740]
The Committee on the Elimination of Discrimination against Women recommends that States enhance economic opportunities for women at risk of involvement in drug trafficking and take measures to reduce the number of women in conflict with the law for drug-related reasons, including through programmes addressing the causes of criminality.[741] The UN General Assembly Special Session 2016 Outcome Document likewise recommends that States identify and address the conditions that make women vulnerable to exploitation and participation in drug trafficking, including as couriers.[742] Several countries have already enacted legislative and policy reforms to address the harmful consequences of drug control efforts on women, taking into account their age, economic status, caretaking responsibility, and pregnancy,[743] as well as the specific circumstances of poor, foreign women imprisoned as drug couriers.[744]
The Committee on the Elimination of Discrimination against Women and the Special Rapporteur on violence against women have called on States to develop gender-specific alternatives to incarceration, in line with the Bangkok Rules.[745] These rules encourage alternative measures and sanctions that take into account the accused’s history, the circumstances of the offence, and her care responsibilities, and they recommend the use of alternatives to incarceration for non-violent offences and the adoption of gender-specific measures to address the needs of women who use drugs.[746] They also recommend the earliest possible transfer of non-resident foreign-national women prisoners to their home country with their consent, especially if the women have children there, taking advantage of relevant bilateral or multilateral agreements.[747] The Mandela Rules provide further guidance on the treatment of women prisoners.[748]
The Commission on Narcotic Drugs has also encouraged UN Member States to take into account the specific needs and circumstances of women subject to arrest, detention, prosecution, and sentencing for drug-related offences when developing crime prevention and criminal justice measures, drawing on, as appropriate, the Bangkok Rules, the Mandela Rules, and the Tokyo Rules.[749] The UN General Assembly Special Session 2016 Outcome Document likewise encourages consideration of the specific needs and circumstances of women in prison for drug offences, in line with the Bangkok Rules and also referring to the Mandela Rules and Tokyo Rules.[750]
Committee on the Elimination of Discrimination against Women, Concluding Observations: Canada, UN Doc. CEDAW/C/CAN/CO/8-9 (2016), para. 44; Committee on the Elimination of Discrimination against Women, Concluding Observations: Brazil, UN Doc. CEDAW/C/BRA/CO/7 (2012), para. 32; Committee on the Elimination of Discrimination against Women, Concluding Observations: UK, UN Doc. A/54/38 (1999), para. 312.
Committee on the Elimination of Discrimination against Women, Concluding Observations: Chile, UN Doc. CEDAW/C/CHL/CO/7 (2018), para. 48.
Committee on the Elimination of Discrimination against Women, Concluding Observations: Chile, UN Doc. CEDAW/C/CHL/CO/7 (2018), para. 49.
Committee on the Elimination of Discrimination against Women, Concluding Observations: Brazil, UN Doc. CEDAW/C/BRA/CO/7 (2012), paras. 32–33; Committee on the Elimination of Discrimination against Women, Concluding Observations: Colombia, UN Doc. CEDAW/C/COL/CO/6 (2007), paras. 20–21.
Committee on the Elimination of Discrimination against Women, Concluding Observations: Chile, UN Doc. CEDAW/C/CHL/CO/7 (2018), para. 49.
Committee on Economic, Social and Cultural Rights, Concluding Observations: Ecuador, UN Doc. E/C.12/ECU/CO/4 (2019), para. 47.
Committee against Torture, Concluding Observations: Argentina, UN Doc. CAT/C/ARG/CO/5-6 (2017), para. 15.
Rashida Manjoo, Special Rapporteur on Violence against Women: Pathways to, Conditions and Consequences of Incarceration for Women, UN Doc. A/68/340 (2013), para. 23.
Report of the Special Rapporteur on Violence against Women, Rashida Manjoo: Mission to the United States of America, UN Doc. A/HRC/17/26/Add.5 (2011), para. 45.
Rashida Manjoo, Special Rapporteur on Violence against Women: Pathways to, Conditions and Consequences of Incarceration for Women, UN Doc. A/68/340 (2013), para. 26.
Report of the Special Rapporteur on Violence against Women, Rashida Manjoo: Mission to the United States of America, UN Doc. A/HRC/17/26/Add.5 (2011), para. 55; Rashida Manjoo, Special Rapporteur on Violence against Women: Pathways to, Conditions and Consequences of Incarceration for Women, UN Doc. A/68/340 (2013), para. 25.
Report of the Special Rapporteur on Minority Issues on Her Mission to Brazil, UN Doc. A/HRC/31/56/Add.1 (2016), para. 59.
Report of the Special Rapporteur on Violence against Women, Rashida Manjoo: Mission to the United States of America, UN Doc. A/HRC/17/26/Add.5 (2011), paras. 55, 115 (e, g).
Report of the Working Group on Arbitrary Detention: Visit to Nicaragua, UN Doc. A/HRC/4/40/Add.3 (2006), para. 86.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 59.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), paras. 45, 58; Report of the Working Group on the Issue of Discrimination against Women in Law and in Practice: Women Deprived of Liberty, UN Doc. A/HRC/41/33 (2019), para. 63.
United Nations, ‘Women’s Rights Must Be Central in Drug Policies, Say UN Experts at the Commission on Narcotics in Drugs’, 13 March 2019, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=24330&LangID=E.
Report of the Working Group on the Issue of Discrimination against Women in Law and in Practice: Women Deprived of Liberty, UN Doc. A/HRC/41/33 (2019), para. 32.
Report of the Working Group on the Issue of Discrimination against Women in Law and in Practice: Women Deprived of Liberty, UN Doc. A/HRC/41/33 (2019), para. 32.
Report of the Working Group on the Issue of Discrimination against Women in Law and in Practice: Women Deprived of Liberty, UN Doc. A/HRC/41/33 (2019), para. 62.
Report of the Working Group on the Issue of Discrimination against Women in Law and in Practice: Women Deprived of Liberty, UN Doc. A/HRC/41/33 (2019), para. 69.
Report of the Working Group on the Issue of Discrimination against Women in Law and in Practice: Women Deprived of Liberty, UN Doc. A/HRC/41/33 (2019), para. 68
Committee on the Elimination of Discrimination against Women, Concluding Observations: Brazil, UN Doc. CEDAW/C/BRA/CO/7 (2012), paras. 32–33; Committee on the Elimination of Discrimination against Women, Concluding Observations: Colombia, UN Doc. CEDAW/C/COL/CO/6 (2007), paras. 20–21.
UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), annex, para. 4(d).
See, e.g., Argentina, Criminal Procedure Code, art. 495; Paraguay, Criminal Procedure Code, art. 238; Paraguay, Penal Code, art. 43; Colombia, Criminal Procedures Code, art. 314; Venezuela, Organic Criminal Procedures Code; Costa Rica, Law 9161 (2013).
See UK Sentencing Council, ‘Drug Mules: Twelve Case Studies’, March 2011, https://www.sentencingcouncil.org.uk/wp-content/uploads/Drug_mules_bulletin.pdf; UK Sentencing Council, ‘Response to Consultation’, 2012, http://www.sentencingcouncil.org.uk/wp-content/uploads/Drug_Offences_Response-web2.pdf.
Committee on the Elimination of Discrimination against Women, General Recommendation No. 33: Women’s Access to Justice, UN Doc. CEDAW/C/GC/33 (2015), paras. 48, 51; Rashida Manjoo, Special Rapporteur on Violence against Women: Pathways to, Conditions and Consequences of Incarceration for Women, UN Doc. A/68/340 (2013), paras. 82–83; see also Committee on the Elimination of Discrimination against Women, Concluding Observations: Cambodia, UN Doc. CEDAW/C/KHM/CO/6 (2019), paras. 44–45.
UN General Assembly, Resolution 65/229: United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), UN Doc. A/RES/65/22 (2011), rules 14, 15, 24(2), 30, 41, 57, 58, 61, 62, 64.
UN General Assembly, Resolution 65/229: United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), UN Doc. A/RES/65/22 (2011), rule 53.
UN Commission on Crime Prevention and Criminal Justice, UN Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), UN Doc. E/CN.15/2015/L.6/Rev.1 (2015), rules 28, 89, 93, 94.
Commission on Narcotic Drugs, Resolution 59/5: Mainstreaming a Gender Perspective in Drug-Related Policies and Programmes (2016).
UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), para. 4(n).
Children have the rights to health, to be heard in matters related to their own health care, and to decisions based on clinical need in the best interests of the child, including decisions related to interventions for children who use drugs.
In accordance with these rights, States should:
i. Develop accessible, child-sensitive prevention, drug dependence treatment, and harm reduction services.
ii. Ensure that decisions regarding access to drug-related health services are taken in the best interests of the child, with due regard to their evolving capacities.
iii. Remove legal age restrictions on existing drug-related health services.
iv. Ensure that young people who use drugs have access to drug-related health information, and counselling without parental or guardian consent, and that treatment or harm reduction service provision without parental or guardian consent is possible when in the best interests of the individual.
Where these interventions concern drug-related criminality, States should:
v. Target efforts primarily at diversion from the criminal justice system and promote rehabilitation over punishment.
vi. Refrain from criminalising children because of their drug use or possession of drugs for personal use.
vii. Adhere to international juvenile justice standards in all efforts to address and respond to drug-related criminality among children and young people.
The Committee on the Rights of the Child has repeatedly called for ‘child-sensitive’ and ‘youth friendly’ drug treatment and harm reduction services.[637] It has consistently recommended that States Parties put in place and adequately fund such services for this age group[638] and has condemned the practice of placing children in compulsory drug detention and rehabilitation centres.[639] The Working Group on Arbitrary Detention has also recommended that drug treatment and harm reduction services be made available to children on a voluntary basis, without oversight or mandate by the judiciary, and with health care services provided by health professionals.[640] Treatment and harm reduction services should be of sufficient quality and acceptable for the needs of this age group, based on the dynamics of drug use among them. Similarly, the UN General Assembly Special Session 2016 Outcome Document promotes ‘non-discriminatory access to a broad range of interventions … giving special attention to the specific needs of … children and youth’.[641]
To facilitate access to services for those in need, legal age restrictions on existing services should be removed[642] and parental consent conditions should be amended.[643] Legal age restrictions inhibit the ability to conduct best interests assessments[644] based on clinical need[645] and in consultation with the young person.[646] While parental consent or support for access to services and health information may be desirable, it should not be a compulsory condition of access. The Committee on the Rights of the Child has been consistent on this matter with regard to adolescent health and sexual and reproductive services.[647] Alternative methods for determining children’s access to services, rooted in the best interests of the child, have been developed through case law on sexual and reproductive health services.[648] In some countries, these methods have already been adapted to drug-related services.[649]
A range of children’s rights treaties and provisions apply in the context of drug-related criminality. The UN General Assembly Special Session 2016 Outcome Document recognises the importance of ensuring that ‘the specific needs, including mental and physical needs, of underage drug offenders and children affected by drug-related crime are appropriately considered, including in criminal justice proceedings where required, including by providing those in need with drug treatment and related support services’.[650] In addition, international juvenile justice standards are set out in the Convention on the Rights of the Child,[651] the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (also known as the Beijing Rules), the United Nations Guidelines for the Prevention of Juvenile Delinquency (also known as the Riyadh Guidelines), the United Nations Rules for the Protection of Juveniles Deprived of Their Liberty, and the Guidelines for Action on Children in the Criminal Justice System.[652] These all emphasise the need for a focus on drug use prevention and drug treatment for those involved in the juvenile justice system.[653] Beyond such provisions, however, juvenile justice standards apply in their entirety to children involved in drug-related criminality. For example, the minimum age of criminal responsibility should be suitably high, and dual ages of criminal responsibility applying a lower age for drug offences should be avoided. Moreover, the detention of children should be avoided wherever possible.[654]
Children should not be criminalised for their drug use. The Committee on the Rights of the Child has been consistent on this matter due to criminalisation’s counterproductive effects and has recommended the repeal of laws criminalising drug use among children.[655] A high court in South Africa has held that the criminalisation of the possession of cannabis for personal use, where the same conduct was not criminalised for adults, violates children’s rights to equality and – given the profound negative impact of exposure to the criminal justice system – the right to have their best interests taken into account.[656]
Committee on the Rights of the Child, General Comment No. 20: Implementation of the Rights of the Child during Adolescence, UN Doc. CRC/C/GC/20 (2016), para. 64; Committee on the Rights of the Child, Concluding Observations: Luxembourg, UN Doc. CRC/C/15/Add.92 (1998), para. 39; Committee on the Rights of the Child, Concluding Observations: Iraq, UN Doc. CRC/C/15/Add.94 (1998), para. 23; Committee on the Rights of the Child, Concluding Observations: Czech Republic, UN Doc. CRC/C/15/Add.201 (2003), para. 51; Committee on the Rights of the Child, Concluding Observations: Moldova, UN Doc. CRC/C/MDA/CO/3 (2009), para. 55(g); Committee on the Rights of the Child, Concluding Observations: Tunisia, UN Doc. CRC/C/TUN/CO/3 (2010), para. 54; Concluding Observations: Austria, UN Doc. CRC/C/AUT/CO/3-4 (2012), para. 51; Committee on the Rights of the Child, Concluding Observations: Fiji, UN Doc. CRC/C/FJI/CO/2-4 (2014), para. 52; Concluding Observations: Ghana, UN Doc. CRC/C/GHA/CO/3-5 (2015), para. 52(f); Committee on the Rights of the Child, Concluding Observations: Angola, UN Doc. CRC/C/AGO/CO/5-7 (2018), para. 30(a); Concluding Observations: Portugal, UN Doc. CRC/C/PRT/CO/5-6 (2019), para. 36(c); Concluding Observations: Micronesia, UN Doc. CRC/C/FSM/CO/2 (2020), para. 55(d); Concluding Observations: Cook Islands, UN Doc. CRC/C/COK/CO/2-5 (2020), para. 43(3); Concluding Observations: Belarus, UN Doc. CRC/C/BLR/CO/5-6 (2020), para. 34(a).
Committee on the Rights of the Child, Concluding Observations: Luxembourg, UN Doc. CRC/C/15/Add.92 (1998), para. 39; Committee on the Rights of the Child, Concluding Observations: Iraq, UN Doc. CRC/C/15/Add.94 (1998), para. 23; Committee on the Rights of the Child, Concluding Observations: Czech Republic, UN Doc. CRC/C/15/Add.201 (2003), para. 51; Committee on the Rights of the Child, Concluding Observations: Moldova, UN Doc. CRC/C/MDA/CO/3 (2009), para. 55(g); Committee on the Rights of the Child, Concluding Observations: Tunisia, UN Doc. CRC/C/TUN/CO/3 (2010), para. 54; Committee on the Rights of the Child, Concluding Observations: Austria, UN Doc. CRC/C/AUT/CO/3-4 (2012), para. 51; Committee on the Rights of the Child, Concluding Observations: Fiji, UN Doc. CRC/C/FJI/CO/2-4 (2014), para. 52; Committee on the Rights of the Child, General Comment No. 20: Implementation of the Rights of the Child during Adolescence, UN Doc. CRC/C/GC/20 (2016), para. 64.
Committee on the Rights of the Child, Concluding Observations: Cambodia, UN Doc. CRC/C/KHM/CO/2-3 (2011), paras. 38–39; Committee on the Rights of the Child, Concluding Observations: Viet Nam, UN Doc. CRC/C/VNM/CO/3-4 (2012), paras. 43–44.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 71.
UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), para. 1(k).
Committee on the Rights of the Child, Concluding Observations: Moldova, UN Doc No CRC/C/MDA/CO/4–5 (2017), para 34(f).
See Committee on the Rights of the Child, Concluding Observations: South Africa, UN Doc. CRC/C/15/Add.122 (2000), para. 31; Committee on the Rights of the Child, Concluding Observations: Turkey, UN Doc. CRC/C/15/Add.152 (2001), para. 54.
Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 3.
Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 24.
Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 12.
See, e.g., Committee on the Rights of the Child, Concluding Observations: Marshall Islands, UN Doc. CRC/C/15/Add.139 (2000), para. 51; Committee on the Rights of the Child, Concluding Observations: Latvia, UN Doc. CRC/C/15/Add.142 (2001), para. 40.
Gillick v. West Norfolk and Wisbech AHA [1985] UKHL 7.
See, e.g., National Institute for Healthcare and Clinical Excellence (UK), Needle and Syringe Programmes: Public Health Guideline (2014); see also World Health Organization, Technical Brief: HIV and Young People Who Inject Drugs (2015).
UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), para. 4(e).
Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 40.
UN General Assembly, Resolution 40/33: United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), UN Doc. A/RES/40/33 (1985); UN General Assembly, Resolution 45/112: United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), UN Doc. A/RES/45/112 (1990); UN General Assembly, Resolution 45/113: United Nations Rules for the Protection of Juveniles Deprived of Their Liberty, UN Doc. A/RES/45/113 (1990); Economic and Social Council, Guidelines for Action on Children in the Criminal Justice System, UN Doc. E/RES/1997/30 (1997).
In particular, UN General Assembly, Resolution 45/112: United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), UN Doc. A/RES/45/112 (1990), paras. 25, 35, 44, 45.
See also Committee on the Rights of the Child, General Comment No. 10: Children’s Rights in Juvenile Justice, UN Doc. CRC/C/GC/10 (2007).
Committee on the Rights of the Child, Concluding Observations: United Kingdom (Isle of Man), UN Doc. CRC/C/15/Add.134 (2000), para. 38; Committee on the Rights of the Child, Concluding Observations: Indonesia, UN Doc. CRC/C/15/Add.223 (2004), para. 72; Committee on the Rights of the Child, Concluding Observations: Armenia, UN Doc. CRC/C/15/Add.225 (2004), paras. 62–63; Committee on the Rights of the Child, Concluding Observations: Bolivia, UN Doc. CRC/C/15/Add.256 (2005), para. 62(c); Committee on the Rights of the Child, Concluding Observations: Norway, UN Doc. CRC/C/15/Add.263 (2005), para. 44(b); Committee on the Rights of the Child, Concluding Observations: Denmark, UN Doc. CRC/C/DNK/CO/3 (2005), para. 55(d); Committee on the Rights of the Child, Concluding Observations: Russian Federation, UN Doc. CRC/C/RUS/CO/3 (2005), para. 77(b); Committee on the Rights of the Child, Concluding Observations: Kiribati, UN Doc. CRC/C/KIR/CO/1 (2006), para. 49(c); Committee on the Rights of the Child, Concluding Observations: Marshall Islands, UN Doc. CRC/C/MHL/CO/2 (2007), para. 55(c); Committee on the Rights of the Child, Concluding Observations: Afghanistan, UN Doc. CRC/C/AFG/CO/1 (2011), para. 52(d); Committee on the Rights of the Child, General Comment No. 20: Implementation of the Rights of the Child during Adolescence, UN Doc. CRC/C/GC/20 (2016), para. 64.
In the Matter of the State and LM and 3 Others, Director of Public Prosecutions, Minister of Justice and Correctional Services, Minister of Social Development, Minister of Health, Minister of Basic Education, Minister of Police and Centre for Child Law (amicus curiae), High Court of South Africa, Gauteng, Local Division, Johannesburg, Case Nos. 97/18, 98/18, 99/18, and 100/18 [2020].
Everyone has the inherent right to life. This right must be protected by law. No one shall be arbitrarily deprived of their life based on actual or perceived drug use or involvement in the illicit drug trade. Drug offences do not meet the internationally recognised threshold of ‘most serious crimes’ for which the death penalty – where it exists – may be imposed.
In accordance with this right, States shall:
i. Take immediate action to halt executions, commute death sentences, and abolish the death penalty for drug offences. States may not transform an offence from a non-capital one to a capital one nor expand penalties for existing offences to include the death penalty.
ii. Take measures to prevent both State-perpetrated and private violence, threats to life, and unnecessary or disproportionate use of potentially lethal force based on actual or perceived drug use or involvement in the illicit drug trade, and investigate, prosecute, and hold accountable those responsible for such acts.
iii. Avoid extraditing or otherwise forcibly returning or transferring a person to another State where that person risks being sentenced to the death penalty for drug offences, unless provided with credible and effective assurances that the death penalty will not be imposed.
iv. Avoid extraditing or otherwise forcibly returning or transferring a person to another State where there are substantial grounds to believe that, based on actual or perceived drug use or involvement in the illicit drug trade, the person risks arbitrary deprivation of their right to life, including by non-State actors over whom the receiving State has no or only partial control or whose acts the receiving State cannot prevent.
In addition, States should:
v. Take steps to ensure that they do not aid or assist in the imposition of the death penalty outside of their jurisdiction and that the supply of equipment, personnel, training, and funding for drug law enforcement activities by or in another State, mutual legal assistance between States, and joint operations with other States do not contribute, directly or indirectly, to the imposition of the death penalty.
vi. Take positive measures to increase the life expectancy of people who use drugs, including adequate steps to provide scientific, evidence-based information, facilities, goods, and services on drug use prevention, overdose prevention and response, and harm reduction, including to reduce such harms as overdose, HIV, viral hepatitis, and other infections and injuries sometimes associated with drug use.
The right to life is recognised in many international and regional treaties and instruments.[301] No derogation of the right to life is permitted, even during armed conflict or public emergencies that threaten the life of a nation.[302] The prohibition on the arbitrary deprivation of life is a rule of customary international law and a peremptory, or jus cogens, norm,[303] which means that the obligation to uphold it extends to all States, regardless of treaty ratification.
Arbitrary deprivation of life: Extrajudicial, summary, and arbitrary executions
The deprivation of life is, as a rule, arbitrary if it is inconsistent with international law or domestic law.[304] The Human Rights Committee has explained that a deprivation of life may still be arbitrary even if authorised by domestic law. The notion of ‘arbitrariness’ is not to be fully equated with ‘against the law’; rather, it must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability, and due process of law,[305] as well as elements of reasonableness, necessity, and proportionality.
The duty to protect the right to life ‘by law’ requires that States take all necessary measures to prevent arbitrary deprivations of life by law enforcement officials, including soldiers charged with law enforcement measures and those empowered or authorised by the State to use potentially lethal force.[306] These measures include enacting an adequate domestic legal framework for the use of force by State actors; procedures to ensure that law enforcement actions are planned to minimise the risk to human life; mandatory reporting, review, and investigation of lethal and other life-threatening incidents; and the supplying of ‘less-lethal’ means and adequate protective equipment to obviate the need to resort to lethal force.[307] Law enforcement officials should be trained and bound by relevant international standards, including the UN Code of Conduct for Law Enforcement Officials and the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.[308]
States are under an obligation to rigorously limit and strictly and effectively monitor the use of force by private individuals and entities empowered or authorised to use potentially lethal force. They are responsible for such individuals’ or entities’ failure to comply with obligations under the right to life and must ensure that victims of the arbitrary deprivation of life by such individuals or entities are granted an effective remedy.[309] States also have a responsibility to address ‘attitudes or conditions within society which encourage or facilitate’ violence or killings committed by non-State actors, including killings of members of minority groups and the social cleansing of ‘undesirables’.[310]
The Human Rights Committee, the Committee on Economic, Social and Cultural Rights, several Special Rapporteurs, and the High Commissioner for Human Rights have all expressed concern about extrajudicial executions by police and armed forces carried out in the course of drug law enforcement activities and about the impunity of perpetrators of such unlawful killings, calling for investigations and for perpetrators to be brought to justice.[311] In some countries, high-ranking government officials have ordered or indirectly encouraged police or the military to ‘shoot to kill’ to combat the trade and use of drugs, a concern that has been raised by the Committee on Economic, Social and Cultural Rights and the Special Rapporteur on extrajudicial, summary, or arbitrary executions.[312]
The use of potentially lethal force for law enforcement purposes is an extreme measure,[313] which should be resorted to only when strictly necessary in order to protect life or prevent serious injury from an imminent threat.[314] The intentional taking of life by any means is permissible only if it is strictly necessary in order to protect life from an imminent threat.[315] The primary purpose of the ‘protect life’ principle is to save life. Accordingly, lethal force may not be used intentionally merely to protect law and order or other similar interests, such as to disperse protests or safeguard property interests.[316] When armed forces participate in law enforcement efforts, including anti-drug operations, they should be trained and bound by international standards on the use of force, in particular the UN Code of Conduct for Law Enforcement Officials and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.[317] They must also be provided with all necessary instructions, training, and equipment to enable them to act with full respect for this legal framework.[318] The Inter-American Court of Human Rights has elaborated upon the obligations of States to restrict the use of armed forces for law enforcement purposes in the context of the ‘war on drugs’, affirming that the maintenance of public order and citizen security is a function reserved primarily for civilian police forces and further emphasising that security forces’ intervention should be exceptional, temporary, and restricted to what is strictly necessary in the circumstances of the case; subordinate and complementary to civil control; subject to human rights law and standards on the use of force and provided with the necessary training to act in full respect of such standards; and overseen by competent, independent, and technically capable civilian bodies.
The International Narcotics Control Board and the executive director of the UN Office on Drugs and Crime have also condemned the practice of extrajudicial executions as a violation of fundamental rights and a clear violation of the international drug conventions.[319] The International Narcotics Board has highlighted that the drug conventions, in line with international human rights law, require that suspected drug-related criminality be addressed through formal criminal justice responses, in accordance with the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and internationally recognised due process standards and has appealed to States to act in accordance with these international standards.[320]
The Minnesota Protocol on the Investigation of Potentially Unlawful Death provides additional guidance regarding international norms on the prevention and investigation of extra-legal, arbitrary, and summary executions.[321]
Extradition and other forcible return or transfer
The duty to respect and ensure the right to life requires States to refrain from extraditing, deporting, or otherwise transferring individuals to countries in which there are substantial grounds for believing that these persons risk being deprived of their life in violation of international guarantees of this right.[322]
All three UN drug control conventions include provisions on extradition.[323] They also include safeguard clauses specifying that the relevant obligations are subject to domestic and constitutional law[324] and permitting States to refuse to comply with extradition requests ‘where there are substantial grounds leading its judicial or other competent authorities to believe that compliance would facilitate the prosecution or punishment of any person on account of his race, religion, nationality or political opinions, or would cause prejudice for any of those reasons to any person affected by the request’.[325] Not only do international human rights treaties provide stronger human rights protection than this, but so too do many national laws, constitutions, and bilateral treaties. The drug control conventions explicitly state that extradition is subject to these obligations.[326]
In certain circumstances, diplomatic assurances provided by the requesting State can resolve issues relating to human rights considerations in the extradition process. However, such assurances may be relied upon only if they are a suitable means to eliminate the danger to the individual concerned and only if the requested State actually considers them reliable.[327] Diplomatic assurances should not be used to undermine the principle of non-refoulement.[328] With regard to the death penalty, assurances may be related to the formal legal process and therefore monitored. However, extradition to a country with a mandatory death penalty for the relevant offence raises questions about the reliability of any assurances, as there is a lack of judicial discretion in sentencing. Moreover, assurances where the State cannot control non-State actors, the military, or others from violating an individual’s right to life are similarly unreliable.[329]
The Special Rapporteur on extrajudicial, summary, or arbitrary executions recommends that States amend national laws on extradition and deportation to specifically prohibit the forced transfer of persons to States where there is a genuine risk that the death penalty may be imposed in violation of internationally recognised standards, unless adequate assurances are obtained.[330]
Protecting and promoting health to preserve life
The Human Rights Committee has explained that the ‘right to life is a right which should not be interpreted narrowly’ and that governments ‘should take appropriate measures to address the general conditions in society that may give rise to direct threats to life or prevent individuals from enjoying their right to life with dignity’, including ‘degradation of the environment, deprivation of land, territories and resources of indigenous peoples, extensive substance abuse [and] the prevalence of life threatening diseases, such as AIDS’.[331] Protecting the right to life requires measures to ensure access without delay to essential goods and services that may be essential to life, including health care.[332] This obligation thus interacts and is linked with obligations under the right to health, such as the provision in the International Covenant on Economic, Social and Cultural Rights directing governments to take steps ‘necessary for … the prevention, treatment and control of epidemic … diseases’, which include those that particularly affect people who use drugs, such as HIV and viral hepatitis. This also means that protecting the right to life requires measures to ensure access without delay to certain goods and services that may be essential to life, including health care.[333] This includes ensuring access to the full range of harm reduction services as outlined by the World Health Organization and to overdose prevention, in addition to removing barriers to such services, including law enforcement practices and criminalisation, in order to reduce rates of HIV and hepatitis infection.
For example, the International Narcotics Control Board has noted that the operation of supervised injection sites is consistent with the drug conventions, citing evidence that such facilities have proven effective in protecting the health and lives of marginalised people who use drugs, and public health more generally, without increasing drug use or drug trafficking.[334] The Board has emphasised that the ‘ultimate objective [of such sites] should be to reduce the adverse consequences of drug abuse without condoning or encouraging drug use and trafficking’.[335] To this end, the Board has called on States to ensure that these facilities ‘provide or refer patients to treatment, rehabilitation and social reintegration services … [which] must not be a substitute for demand reduction programs’.[336] The Supreme Court of Canada has ruled that the denial of an exemption to criminal prohibitions on drug possession in order to permit the operation of a supervised injection site without risk of criminal prosecution impermissibly violates the constitutional rights of people with drug dependence, namely their rights to life, liberty, and security of the person.[337]
Death penalty
Under international law, the death penalty, when used, is restricted to the ‘most serious crimes’,[338] which ‘appertain only to crimes of extreme gravity, involving intentional killing’.[339] Drug offences cannot serve as the basis for the death penalty,[340] and mandatory death sentences are prohibited.[341] States must review their criminal laws to ensure that the death penalty is not imposed for crimes not qualifying as ‘most serious crimes’. They should revoke death sentences issued, and resentence those convicted, for such crimes.[342]
The International Covenant on Civil and Political Rights also imposes an absolute prohibition on the death penalty for pregnant women. Both the International Covenant and the Convention on the Rights of the Child impose an absolute prohibition on the death penalty for offences committed by persons under 18 years of age.[343] The Human Rights Committee has further concluded that States must refrain from imposing the death penalty on people who face special barriers in defending themselves on an equal basis as others, such as people whose serious psychosocial and intellectual disabilities impede their effective defence.[344] The Committee recommends that States refrain from executing people who have a diminished ability to understand the reasons for their sentence and persons whose execution would be exceptionally cruel or would lead to exceptionally harsh results for their families (such as where the person in question has suffered serious human rights violations or is the parent of very young or dependent children).[345] In considering alternative sentencing, the Convention on the Rights of the Child also prohibits minors’ imprisonment without the possibility of release.[346]
In addition, States have a duty to take measures to ensure that the death penalty is never imposed in an unlawful or discriminatory manner. Where the death penalty is pursued or imposed disproportionately against religious, racial, or ethnic minorities; indigenous groups; foreign nationals; indigent persons; LGBTI persons; groups based on their political or other opinions; or any other ‘other status’ groups against which discrimination is prohibited (such as people who use drugs), this may constitute discriminatory application of the death penalty.[347] The General Assembly has urged States to ensure that the death penalty is not applied on the basis of discriminatory laws or as a result of discriminatory or arbitrary application of the law.[348]
The Human Rights Committee emphasises that States can never impose the death penalty for an offence for which such punishment was not provided by law at the time of the act’s commission, but notes that they should apply the abolition of the death penalty retroactively to people already charged with or convicted of a capital offence.[349] Moreover, ‘States parties to the [International Covenant on Civil and Political Rights] who have abolished the death penalty by amending their domestic laws, becoming parties to the Second Optional Protocol … or adopting another international instrument obligating them to abolish the death penalty are barred from reintroducing it’.[350] The Committee has also stated that serious procedural flaws, such as the failure to promptly inform detained foreign nationals of their right to consular notification pursuant to the Vienna Convention on Consular Relations and the failure to afford individuals about to be deported to a country in which their lives are claimed to be at real risk with the opportunity to avail themselves of available appeal procedures, may render the imposition of the death penalty in violation of the Covenant.[351]
States should also take steps to ensure that they do not aid or assist in the imposition of the death penalty outside of their jurisdiction and that the supply of equipment, personnel, training, and funding for drug law enforcement activities by or in another State, mutual legal assistance between States, and joint operations with other States in relation to drug control do not contribute, directly or indirectly, to the imposition of the death penalty. In this respect, the Special Rapporteur on extrajudicial, summary, or arbitrary executions has raised concern that international cooperation on criminal and other matters – such as the provision of mutual legal, material, financial, or technical assistance between States, State contributions to multilateral assistance programmes, and the transfer of persons from abolitionist to non-abolitionist States –may contribute to the imposition of the death penalty for drug offences or drug-related crimes, in violation of international law.[352] These forms of inter-State cooperation may also raise questions of complicity where they contribute to the imposition of the death penalty in violation of international standards or issues of non-compliance with the assisting State’s international legal commitments.[353] The Special Rapporteur calls on States to develop guidelines on the provision of financial and technical aid and mutual assistance, especially with regard to drug-related offences, to ensure that they do not support violations of the right to life.[354]
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 6; African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 4; American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 4; Arab Charter on Human Rights (2004), art. 5; [European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (1950), art. 2; ASEAN Human Rights Declaration, 21st ASEAN Summit, Phnom Penh, 18 November 2012, para. 11; see also Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), art. 3.
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 4; Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 2.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), paras. 2, 68; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christopher Heyns, UN Doc. A/67/275 (2012), para. 11.
Human Rights Committee, General Comment 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 12.
Human Rights Committee, Communication No. 1134/2002: Gorji-Dinka v. Cameroon, UN Doc. CCPR/C/83/D/1134/2002 (2005), para. 5.1; Human Rights Committee, Communication No. 305/1988: Van Alphen v. The Netherlands, UN Doc. CCPR/C/39/D/305/1988 (1990), para. 5.8.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), paras. 13, 15; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christopher Heyns, UN Doc. A/HRC/26/36 (2014), paras. 46–47; see also Office of the UN High Commissioner for Human Rights, Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016): The Revised United Nations Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions (2017).
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 13; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christopher Heyns, UN Doc. A/HRC/26/36 (2014), paras. 46–47; see also Office of the UN High Commissioner for Human Rights, Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016): The Revised United Nations Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions (2017).
Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990); UN General Assembly, Resolution 34/169: Code of Conduct for Law Enforcement Officials, UN Doc. A/RES/34/169 (1979); see Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 13; see also Office of the UN High Commissioner for Human Rights, Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016): The Revised United Nations Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions (2017), para. 34.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 15.
Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston, UN Doc. E/CN.4/2005/7 (2014), para. 71.
Human Rights Committee, Concluding Observations: Gambia, UN Doc. CCPR/C/GMB/CO/2 (2018), para. 25; Human Rights Committee, Concluding Observations: Thailand, UN Doc. CCPR/CO/84/THA (2005), para. 10; Committee on Economic, Social and Cultural Rights, Concluding Observations: Philippines, UN Doc. E/C.12/PHL/CO/5-6 (2016), paras. 53, 54; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns: Mission to Mexico, UN Doc. A/HRC/26/36/Add.1 (2014), para. 8; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Philip Alston UN Doc. A/HRC/11/2/Add.2 (2009), paras. 33, 53; United Nations, ‘UN Experts Urge Philippines to Stop Attacks and Killings in Anti-Drugs Campaign’, 23 November 2017, http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22434&LangID=E; United Nations, ‘Killings of Suspected “drug offenders” in Bangladesh Must Stop – UN Human Rights Chief’, 6 June 2018, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23178.
Committee on Economic, Social and Cultural Rights, Concluding Observations: Philippines, UN Doc. E/C.12/PHL/CO/5-6 (2016), para. 53; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston, UN Doc. E/CN.4/2006/53 (2016), paras. 44, 55; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston, UN Doc. A/HRC/26/36/Add.1 (2014), para. 8.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 12; UN General Assembly, Resolution 34/169: Code of Conduct for Law Enforcement Officials, UN Doc. A/RES/34/169 (1979), commentary to art. 3.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 12; Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990), para. 9.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 12; Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990), para. 9.
Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christopher Heyns, UN Doc. A/HRC/26/36 (2014), para. 72.
See Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990); UN General Assembly, Resolution 34/169: Code of Conduct for Law Enforcement Officials, UN Doc. A/RES/34/169 (1979).
UN General Assembly, Resolution 34/169: Code of Conduct for Law Enforcement Officials, UN Doc. A/RES/34/169 (1979), art. 1.
International Narcotics Control Board, Annual Report 2018 (2019), paras. 326–329, 578, 628, 856; UN Office on Drugs and Crime, ‘Statement by the UNODC Executive Director on the Situation in the Philippines’, 3 August 2016, https://www.unodc.org/unodc/en/press/releases/2016/August/statement-by-the-unodc-executive-director-on-the-situation-in-the-philippines.html; International Narcotics Control Board, ‘INCB Condemns Acts of Violence against Persons Suspected of Drug-Related Crime and Drug Use in the Philippines’, 18 August 2017, https://www.incb.org/incb/en/news/press-releases/2017/press_release_20170818.html.
International Narcotics Control Board, Annual Report 2018 (2019), paras. 326–329, 578, 628, 856.
Office of the UN High Commissioner for Human Rights, Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016): The Revised United Nations Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions (2017).
See, e.g., Human Rights Committee, Communication No. 470/1991: Kindler v. Canada, UN Doc. CCPR/C/48/D/470/1991 (1993), para. 13.1–13.2; see also Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions (1989), para. 5.
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 36(2)(b); Convention on Psychotropic Substances, 1019 UNTS 14956 (1971), art. 22(2); Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 6.
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 36(2)(a)(4); Convention on Psychotropic Substances, 1019 UNTS 14956 (1971), art. 22(2)(a)(iv), (b); Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 6(8, 10).
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 6(6).
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 36(2)(a)(4); Convention on Psychotropic Substances, 1019 UNTS 14956 (1971), art. 22(2)(a)(iv), (b); Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 6(8, 10).
See, e.g., European Court of Human Rights, Einhorn v. France, Application No. 71555/01, 19 July 2001; European Court of Human Rights, Salem v. Portugal, Application No. 26844/04, 9 May 2006; European Court of Human Rights, Babar Ahmad and Others v. United Kingdom, Application Nos. 24027/07, 11949/08, 36742/08, 24 September 2012; European Court of Human Rights, Rrapo v. Albania, Application No. 58555/10, 25 December 2012.
Committee against Torture, General Comment No. 4: The Implementation of Article 3 in the Context of Article 22, UN Doc. CAT/C/GC/4 (2018), para. 37; Committee against Torture, Concluding Observations: Argentina, UN Doc. CAT/C/ARG/CO/5-6 (2017), para. 33.
See, e.g., European Court of Human Rights, Chahal v. United Kingdom, Application No. 22414/93, 15 November 1996, para. 105.
Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc. A/70/304 (2015), para. 117.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), paras. 3, 26.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), paras. 3, 26.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), paras. 3, 26.
International Narcotics Control Board, Annual Report 2017 (2018), paras. 20(h), 481.
International Narcotics Control Board, Annual Report 2017 (2018), paras. 20(h), 481.
International Narcotics Control Board, Annual Report 2017 (2018), para. 840.
Canada (Attorney General) v. PHS Community Services Society [2011] 3 SCR 134 (Canada).
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 6(2).
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 35.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 35; Human Rights Committee, Concluding Observations: Viet Nam, UN Doc. CCPR/C/VNM/CO/3 (2019), para. 23; Human Rights Committee, Concluding Observations: Lao People’s Democratic Republic, UN Doc. CCPR/C/LAO/CO/1 (2018), para. 17; Human Rights Committee, Concluding Observations: Bahrain, UN Doc. CCPR/C/BHR/CO/1 (2018), para. 31; Human Rights Committee, Concluding Observations: Thailand, UN Doc. CCPR/CO/84/THA (2005), para. 14; Human Rights Committee, Concluding Observations: Sudan, UN Doc. CCPR/C/SDN/CO/5 (2018), para. 29; Human Rights Committee, Concluding Observations: Sudan, UN Doc. CCPR/C/SDN/CO/3 (2007), para. 19; Human Rights Committee, Concluding Observations: Kuwait, UN Doc. CCPR/C/KWT/CO/3 (2016), paras. 22(b), 23; Human Rights Committee, Concluding Observations: Pakistan, UN Doc. CCPR/C/PAK/CO/1 (2017), paras. 17, 18(a); Committee against Torture, Concluding Observations: Kuwait, UN Doc. CAT/C/KWT/CO/3 (2016), para. 26; Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 41; Question of the Death Penalty: Report of the Secretary-General, UN Doc. A/HRC/21/29 (2012), para. 24; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston, UN Doc. A/HRC/4/20 (2007), paras. 51, 52; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc. A/67/275 (2012), para. 122; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, UN Doc. A/HRC/10/44 (2009), para. 66; Question of the Death Penalty: Report of the Secretary-General, UN Doc. A/HRC/24/18 (2013), para. 78; Moratorium on the Use of the Death Penalty: Report of the Secretary-General, UN Doc. A/73/260 (2018); Report of the UN High Commissioner for Human Rights: Study on the Impact of the World Drug Problem on the Enjoyment of Human Rights, UN Doc. A/HRC/30/65 (2015), para. 63; Report of the High Commissioner for Human Rights on Implementation of the Joint Commitment to Effectively Addressing and Countering the World Drug Problem with Regard to Human Rights, UN Doc. A/HRC/39/39 (2018); International Narcotics Control Board, Report of the International Narcotics Control Board, 2017 (2018), para. 257.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 37; Human Rights Committee, Concluding Observations: Sudan, UN Doc. CCPR/C/SDN/CO/5 (2018), para. 29; Human Rights Committee, Communication No. 390/1990: Luboto v. Zambia, UN Doc. CCPR/C/55/D/390/1990/Rev.1 (1995), para. 7.2; Human Rights Committee Communication No. 1132/2002: Chisanga v. Zambia, UN Doc. CCPR/C/85/D/1132/2002 (2005), para. 7.4; Human Rights Committee, Communication No. 1421/2005: Larranaga v. Philippines, UN Doc. CCPR/C/87/D/1421/2005 (2006), para. 7.2; Human Rights Committee, Communication No. 1077/2002: Carpo v. Philippines, UN Doc. CCPR/C/77/D/1077/2002 (2002), para. 8.3.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 35.
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 6(5); Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 37(a).
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 49; Human Rights Committee, Concluding Observations: Japan, UN Doc. CCPR/C/JPN/CO/6 (2014), para. 13.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 49.
Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 37(a).
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 44; Human Rights Committee, Concluding Observations: United States, UN Doc. CCPR/C/USA/CO/4 (2014), para. 8.
UN General Assembly, Resolution 73/175: Moratorium on the Use of the Death Penalty, UN Doc. A/RES/73/175 (2019).
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 38.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 35.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 42.
Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc. A/67/275 (2012), paras. 79–81; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc. A/70/304 (2015), paras. 102–107.
Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc. A/67/275 (2012), para. 79.
Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc. A/67/275 (2012), paras. 128; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc. A/70/304 (2015), para. 107.
Torture and other cruel, inhuman, or degrading treatment or punishment are absolutely prohibited, in all circumstances. This includes during the arrest, questioning, and detention of persons alleged to have committed drug-related crimes or otherwise implicated during an investigation. The withholding of drugs from those who need them for medical purposes, including for drug dependence treatment and pain relief, is considered a form of torture.
In accordance with this right, States shall:
i. Take effective legislative, administrative, judicial, and other measures to prohibit, prevent, and redress all acts of torture and ill-treatment in their jurisdiction and in all settings under their custody or control, including in the context of drug dependence treatment, whether administered in public or private facilities.
ii. Promptly investigate allegations of torture and cruel, inhuman, or degrading treatment or punishment by State agents, as well as acts that occur in their territory or under their jurisdiction (whether carried out by State or non-State actors), and prosecute and punish those responsible, including when victims are persons alleged to have committed drug-related offences or who are dependent on drugs.
iii. Avoid extraditing or otherwise forcibly returning or transferring individuals to another State where there are substantial grounds to believe that they are at risk of subjection to torture or cruel, inhuman, or degrading treatment or punishment, including by non-State actors over which the receiving State has no or only partial control or whose acts the receiving State cannot prevent, or because they risk expulsion to a third State where they may be in danger of subjection to torture or other prohibited ill-treatment.
iv. Abolish corporal punishment for drug offences where it is in place.
In addition, States should:
v. Ensure access to essential medicines, including for drug dependence, pain treatment, and palliative care.
vi. Ensure that access to health care for people who use or are dependent on drugs and are in places of detention is equivalent to that available in the community.
vii. Establish a national system to effectively monitor drug dependence treatment practices and to inspect drug dependence treatment centres, as well as places of detention, including migrant detention centres, police stations, and prisons.
The prohibition against torture and other cruel, inhuman, or degrading treatment or punishment is enshrined in numerous international and regional treaties and other instruments.[355] This prohibition is absolute and non-[356] The obligation to prohibit, prevent, and redress torture and ill-treatment extends to all acts by State and non-State actors[357] and to all contexts of custody and control, including prisons, hospitals, ‘and other institutions as well as contexts where the failure of the State to intervene encourages and enhances the danger of privately inflicted harm’.[358]
Policing practices
The Committee against Torture, the Human Rights Committee, the Working Group on Arbitrary Detention, and the Special Rapporteur on torture have found that the use of violence by law enforcement officials and the withholding of opioid substitution therapy or otherwise inducing withdrawal to coerce confessions or obtain information – for example, about other people who use drugs or to reveal dealers or suppliers – constitute ill-treatment and possibly torture.[359] The Committee against Torture has urged that States take ‘all measures necessary to effectively protect drug users deprived of liberty against the infliction of pain and suffering associated with withdrawal by police, including to extract confessions; ensure such confessions are not admitted by the courts; and provide drug users in detention with adequate access to necessary medical treatment’.[360]
The use of violence by law enforcement officials and of withdrawal to coerce confessions or obtain information also contravenes international standards for law enforcement, in particular the UN Code of Conduct for Law Enforcement Officials, which states that torture by law enforcement officials cannot be justified in any circumstance and instructs such officials to ensure the ‘full protection of persons in their custody’ and ‘take immediate action to secure medical attention whenever required’.[361] Other policing practices may infringe the right to freedom from cruel, inhuman, and degrading treatment. For example, the European Court of Human Rights has found that forcing regurgitation – which causes physical pain and mental suffering – to retrieve evidence of a drug offence that could have been obtained by less intrusive methods constitutes inhuman and degrading treatment.[362]
Pretrial detention
The Committee against Torture and the Special Rapporteur on torture have raised concerns about criminal laws on narcotics that provide that people arrested under such laws can be held for lengthy periods without being brought before a judge and without having access to legal counsel. They have found that such regimes leave the accused vulnerable to a high risk of torture and ill-treatment. They have thus recommended that such laws be amended and that States otherwise ensure judicial procedure guarantees as part of efforts to prevent torture.[363]
Prison and other closed settings
Abuse among prisoners, from subtle forms of harassment to intimidation and serious physical and sexual attacks, are common.[364] People who use drugs and other vulnerable populations might face heightened risk of violence by other detainees, especially where States have delegated detainees with the authority to maintain discipline.[365] The employment of detainees in such disciplinary capacity violates international standards.[366] Moreover, States have a positive obligation to exercise due diligence to prevent violence among those in their custody. Inter-prisoner violence may amount to torture or ill-treatment if States fail to act with due diligence to prevent it.[367]
Extradition and other forcible return or transfer
Prohibition of the extradition and other forcible return or transfer of an individual to a country where there are substantial grounds for believing that they may face torture or cruel, inhuman, or degrading treatment or punishment by State or non-State actors is enshrined in international and regional human rights instruments. For example, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment expressly provides that ‘[n]o State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture’.[368]
Limits on extradition and other forms of forcible transfer under the Convention against Torture also apply where there are substantial grounds for believing that the person in question would be in danger of subjection to torture or ill-treatment at the hands of non-State actors over whom the receiving State has no or only partial de facto control, whose acts the State is unable to prevent, or who otherwise operate with impunity in the receiving State.[369] The International Covenant on Civil and Political Rights[370] and regional human rights instruments likewise protect individuals from extradition and other forms of transfer in cases of torture and cruel, inhuman, or degrading treatment or punishment.[371] The Committee against Torture has raised specific concerns that a government expelling foreigners convicted of drug trafficking and banning them from the country for a period seriously risks violating the principle of non-refoulement.[372]
Health services and cruel, inhuman, or degrading treatment
UN human rights mechanisms have concluded that the denial, removal, or discontinuation of effective drug dependence treatment, such as opioid substitution therapy, including in custodial settings, may violate the prohibition against cruel, inhuman, or degrading treatment or punishment.[373] Government failure to ensure access to controlled medicines for pain relief may also constitute cruel, inhuman, or degrading treatment or punishment, where, for example, a person’s suffering is severe and meets the minimum level of severity under the prohibition against torture and ill-treatment; where the State is, or should be, aware of the person’s suffering, including when no appropriate treatment was offered; and where the State failed to take all reasonable steps to protect the person’s physical and mental integrity.[374] Withholding antiretroviral treatment from people living with HIV who use drugs – based on the assumption that they will not be able to adhere to said treatment – has been deemed cruel and inhuman treatment in light of the physical and psychological suffering it causes.[375]
In addition, States have an obligation to ensure that incarcerated individuals have access to the same level of health care available in the general community, including services related to drug use and drug dependence.[376] Failure to do so may amount to cruel, inhuman, or degrading treatment or punishment.[377]
Independent oversight of places of deprivation of liberty
The Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment defines ‘deprivation of liberty’ as ‘any form of detention or imprisonment or the placement of a person in a public or private custodial setting which that person is not permitted to leave at will by order of any judicial, administrative or other authority’.[378]
International norms on the treatment of people deprived of liberty require that regular inspections of places of deprivation of liberty be performed by the administration of the institution and a body independent of it. The Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment requires that States Parties ‘set up, designate or maintain at the domestic level one or several visiting bodies for the prevention of torture and other cruel, inhuman or degrading treatment or punishment’, called ‘national preventive mechanisms’,[379] and guarantee the functional independence and independence of the personnel of these mechanisms.[380] The Special Rapporteur on torture has recommended that States ‘ensure that all places of detention are subjected to effective oversight and inspection and unannounced visits by independent bodies established in conformity with the Optional Protocol to the Convention against Torture as well as by civil society monitors; and ensure the inclusion of women and lesbian, gay, bisexual and transgender persons and other minority representation on monitoring bodies’.[381] The Special Rapporteur has also recommended that States monitor places of detention in a gender-sensitive manner[382] and ‘set up operational protocols, codes of conduct, regulations and training modules for the ongoing monitoring and analysis of discrimination against women, girls, and lesbian, gay, bisexual and transgender persons with regard to access to all services and rehabilitation programmes in detention; and document, investigate, sanction and redress complaints of imbalance and direct or indirect discrimination in accessing services and complaint mechanisms’.[383]
The UN Standard Minimum Rules for the Treatment of Prisoners (also known as the Mandela Rules) and the UN Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (also known as the Bangkok Rules) also provide guidance on the conducting of such inspections,[384] specifying, among other things, that bodies tasked with monitoring, inspection, and supervision should include women members.[385]
Drug detention centres
In some countries, people who are suspected of drug use are held in compulsory drug detention centres, often without medical evaluation, judicial review, or right of appeal and undergo detention, physical disciplinary exercises (such as military-style drills), and forced labour as ‘treatment’, in plain disregard of medical evidence and in violation of international human rights protections, including against torture and ill-treatment. The Committee against Torture, the Committee on the Rights of the Child, the Committee on Economic, Social and Cultural Rights, the Human Rights Committee, the Special Rapporteurs on torture and on the right to health, and the Working Group on Arbitrary Detention have raised concerns about torture and ill-treatment in compulsory drug detention centres, calling for their immediate closure; an end to financial and technical support for such centres; prompt, thorough, impartial investigations of abuses; the prosecution of alleged perpetrators and, if found guilty, punishment commensurate with the seriousness of their acts; and adequate redress for victims.[386] In addition, the Committee on the Rights of the Child has urged the release, without delay, of children in drug detention centres and the establishment of an independent, child-sensitive mechanism to receive complaints against law enforcement officers and to provide victims with redress.[387]
The Human Rights Committee has raised concern about arbitrary arrest and detention without due process,[388] as well as compulsory detoxification, forced labour, inadequate medical care, and onerous work conditions in drug detention centres.[389] 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.[390]
In 2012, 12 UN entities called for the immediate closure of such facilities, as well as the immediate release of those detained.[391] In 2020, 13 UN entities, recalling the 2012 joint statement on compulsory drug detention centres, likewise called on States operating compulsory drug detention centres to close them permanently without delay and to implement voluntary, evidence- and rights-based health and social services in the community as part of efforts to curb the spread of COVID-19.[392] Moreover, the UN General Assembly Special Session 2016 Outcome Document places an emphasis on people’s ‘voluntary participation’ in treatment programmes and the need to ‘prevent any possible acts of cruel, inhuman or degrading treatment or punishment’ in drug treatment and rehabilitation facilities.[393]
Solitary confinement, judicial corporal punishment, and corporal punishment as ‘treatment’
The Committee against Torture has expressed concern about the use of solitary confinement in drug treatment centres ‘when persons undergoing treatment are not “reformed through education” or do not obey discipline’, among other grounds.[394] The Committee has also expressed concern about the extended use of administrative detention, such as measures of ‘compulsory isolation in drug treatment centres’. It has called for the abolition of all forms of administrative detention, ‘which confine individuals without due process and make them vulnerable to abuse’, and for the prioritisation of community-based or alternative social-care services for people with drug dependence.[395]
The Special Rapporteurs on health and on torture have raised concerns about State-sanctioned beatings, caning, or whipping,[396] as well as ‘flogging therapy’ [397]in the guise of ‘treatment’, at compulsory drug detention centres. The UN Working Group on Arbitrary Detention has received reports of the caning of prisoners found guilty of drug trafficking or drug possession.[398] The Human Rights Committee, the Committee against Torture, the Committee on Economic, Social and Cultural Rights, and the Committee on the Rights of the Child have called for the abolition of corporal punishment, whether imposed under criminal or administrative proceedings.[399] The Human Rights Committee has stated that corporal punishment constitutes ill-treatment or punishment contrary to article 7 of the Covenant, irrespective of the nature of the crime being punished or the permissibility of corporal punishment under domestic law.[400] The Committee has also recognised that the imposition of a sentence of corporal punishment violates prohibitions against torture and ill-treatment, regardless of whether the sentence is carried out.[401] The Special Rapporteur on torture has also concluded that ‘without exception’, corporal punishment amounts to cruel, inhuman, or degrading punishment or torture and is absolutely prohibited in international law.[402]
Private actors
The obligation to prohibit, prevent, and redress torture applies to acts by State and non-State actors alike[403] and to all contexts of custody and control, including prisons, hospitals, ‘and other institutions as well as contexts where the failure of the State to intervene encourages and enhances the danger of privately inflicted harm’.[404] The obligation therefore extends to private facilities.
The Committee against Torture has raised concern about poor conditions in private drug treatment centres and ill-treatment inflicted upon persons admitted to them. The Committee calls for the taking of all steps necessary to prevent and punish ill-treatment in such centres and for the prompt, thorough, and effective investigation of all complaints of ill-treatment in these centres, ensuring that the persons responsible are brought to trial and, if found guilty, receive penalties commensurate with the seriousness of their acts.[405]
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 7; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46 (1984), arts. 2, 16; [European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (1950), art. 3; American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 1; African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 5; Arab Charter on Human Rights (2004), art. 8; Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), art. 5.
Committee against Torture, General Comment No. 2: Implementation of Article 2 by States Parties, UN Doc. CAT/C/GC/2 (2008), paras. 1, 2; Committee against Torture, Concluding Observations: Australia, UN Doc. CAT/C/AUS/CO/3 (2008), para. 18; Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, UN Doc. E/CN.4/1985/4 (1984), para. 27.
Human Rights Committee, General Comment No. 20: Prohibition of Torture, UN Doc. HRI/GEN/1/Rev.1 (1994), para. 8; Committee against Torture, General Comment No. 2: Implementation of Article 2 by States Parties, UN Doc. CAT/C/GC/2 (2008), paras. 15, 17, 18; Committee against Torture, Communication No. 161/2000: Hajrizi Dzemajl et al. v. Yugoslavia, UN Doc. CAT/C/29/D/161/2000 (2002), paras. 8.12, 9.2; see also European Court of Human Rights, Z and Others v. United Kingdom, Application No. 29392/95, 10 May 2001, para. 73.
Committee against Torture, General Comment No. 2: Implementation of Article 2 by States Parties, UN Doc. CAT/C/GC/2 (2008), paras. 15, 17; European Court of Human Rights, Opuz v. Turkey, Application No. 3401/02, 9 June 2009, para. 159; see also Committee on the Elimination of Discrimination against Women, Communication No. 17/2008: Maria de Lourdes da Silva Pimentel v. Brazil, UN Doc. CEDAW/C/49/D/17/2008 (2011), para. 7.5.
Committee against Torture, Concluding Observations: Russia, UN Doc. CAT/C/RUS/6 (2018), para. 20; Human Rights Committee, Concluding Observations: Russian Federation, UN Doc. CCPR/RUS/CO/7 (2015), para. 16; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak: Addendum, Mission to Indonesia, UN Doc. A/HRC/7/3/Add.7 (2008), paras. 22, 64, 70–71, 80, 108–109, 127, 139, 140, 142; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/22/53 (2013), para. 73; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, Addendum: Mission to Uruguay, UN Doc. A/HRC/13/39/Add.2 (2009), para. 85; Interim report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc. A/68/295 (2013), para. 68; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, UN Doc. A/HRC/10/44 (2009), para. 57; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak: Addendum, Mission to Indonesia, UN Doc. A/HRC/7/3/Add.7 (2009), para. 22; Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), paras. 21–23.
Committee against Torture, Concluding Observations: Russia, UN Doc. CAT/C/RUS/6 (2018), para. 21.
UN General Assembly, Resolution 34/169: Code of Conduct for Law Enforcement Officials, UN Doc. A/RES/34/169 (1979), arts. 5, 6.
European Court of Human Rights, Jalloh v. Germany, Application No. 54810/00, 11 July 2006.
Committee against Torture, Concluding Observations: Mauritania, UN Doc. CAT/C/MRT/CO/2 (2018), paras. 8–9; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez: Mission to Mauritania, UN Doc. A/HRC/34/54/Add.1 (2017), paras. 75, 117.
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/68/295 (2013), para. 47.
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/68/295 (2013), para. 47.
UN Commission on Crime Prevention and Criminal Justice, UN Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), UN Doc. E/CN.15/2015/L.6/Rev.1 (2015), rule 40.
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/68/295 (2013), para. 48; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, UN Doc. A/HRC/13/39/Add.3 (2009), para. 28.
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46 (1984), art. 3; see also Committee against Torture, Committee against Torture, General Comment No. 4: The Implementation of Article 3 in the Context of Article 22 (2018), para. 9; Committee against Torture, General Comment No. 2: Implementation of Article 2 by States Parties, UN Doc. CAT/C/GC/2 (2008), paras. 3, 6, 19, 25.
Committee against Torture, General Comment No. 4: The Implementation of Article 3 in the Context of Article 22 (2018), para. 30.
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 7; Human Rights Committee, General Comment No. 20: Prohibition of Torture, UN Doc. HRI/GEN/1/Rev.1 (1994), para. 9; Human Rights Committee, Communication No. 470/1991: Kindler v. Canada, UN Doc. CCPR/C/48/D/470/1991 (1993); Human Rights Committee, Communication No. 469/1991: Chitat Ng v. Canada, UN Doc. CCPR/C/49/D/469/1991 (1994); Human Rights Committee, Communication No. 539/1993: Cox v. Canada, UN Doc. CCPR/C/52/D/539/1993 (1994).
[European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (1950), art. 3; African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 5; Inter-American Convention to Prevent and Punish Torture, O.A.S. Treaty Series No. 67 (1987), art. 2; see also 1951 Convention relating to the Status of Refugees, 189 UNTS 137 (1951), art. 33; Organization for African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa (1969), arts. 1(1, 2), 2(3). From the jurisprudence of the European Court of Human Rights, see, e.g., European Court of Human Rights, Soering v. United Kingdom, Application No. 14038/88, 7 July 1989; European Court of Human Rights, Cruz Varas v. Sweden, Application No. 15576/89, 20 March 1991; European Court of Human Rights, Vilvarajah and Others v. United Kingdom, Application Nos. 13163/87, 13164/87, 13165/87, 13447/87, 13448/87, 30 October 1991.
Committee against Torture, Concluding Observations: Switzerland, UN Doc. CAT/C/CHE/CO/6 (2010), para. 11.
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, UN Doc. A/HRC/10/44 (2009), paras. 57, 74(e); Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/22/53 (2013); see also European Court of Human Rights, Bensaid v. the United Kingdom, Application No. 44599/98, 6 May 2001, para. 37.
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, UN Doc. A/HRC/10/44 (2009), para. 72; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/22/53 (2013), paras. 54, 56.
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/22/53 (2013), para. 73; see also Committee against Torture, Communication No. 672/2015: D.C. and D.E v. Georgia, UN Doc. CAT/C/62/D/672/2015 (2017).
Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover, UN Doc. A/65/255 (2010), para. 60.
Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc. A/68/295 (2013), paras. 26, 54.
Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 2375 UNTS 237 (2002), art. 4(1).
Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 2375 UNTS 237 (2002), art. 4(2).
Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 2375 UNTS 237 (2002), art. 18(1).
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/31/57 (2016), para. 20(y).
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/31/57 (2016), para. 20(x).
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/31/57 (2016), para. 20(w).
UN Commission on Crime Prevention and Criminal Justice, UN Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), UN Doc. E/CN.15/2015/L.6/Rev.1 (2015), rules 83–85.
UN General Assembly, Resolution 65/229: United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), UN Doc. A/RES/65/22 (2011), rule 25(3).
See, e.g., Committee against Torture, Concluding Observations: Belarus, UN Doc. CAT/C/BLR/5 (2018), paras. 23–24; Committee against Torture, Concluding Observations: Guatemala, UN Doc. CAT/C/GTM/CO/5-6 (2013), paras. 20–21; Committee against Torture, Concluding Observations: Guatemala, UN Doc. CAT/C/GTM/CO/7 (2018), paras. 30–31; Committee against Torture, Concluding Observations: Turkmenistan, UN Doc. CAT//C/TKM/CO/2(2017), para. 8(d); Committee against Torture, Concluding Observations: China, UN Doc. CAT/C/CHN/CO/5 (2016), paras. 26, 42–43; Human Rights Committee, Concluding Observations: Cambodia, UN Doc. CCPR/C/KHM/CO/2 (2015), para. 16; Committee on the Rights of the Child, Concluding Observations: Cambodia, UN Doc. CRC/C/KHM/CO/2-3 (2011), paras. 38–39; Committee on Economic, Social and Cultural Rights, Concluding Observations: Belarus, UN Doc. E/C.12/BLR/CO/4-6 (2013), para. 15; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/22/53 (2013), paras. 42, 87(a); Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover, UN Doc. A/65/255 (2010), paras. 30–39; Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health: Mission to Viet Nam, UN Doc. A/HRC/20/15/Add.2 (2012), para. 64(a); Report of the Working Group on Arbitrary Detention, UN Doc. A/HRCC/47/40 (2021), paras. 86, 126 (e, f); United Nations, ‘Statement by the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health on the Protection of People Who Use Drugs during the COVID-19 Pandemic’, 16 April 2020, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25797.
Committee on the Rights of the Child, Concluding Observations: Cambodia, UN Doc. CRC/C/KHM/CO/2-3 (2011), para. 39.
Human Rights Committee, Concluding Observations: Lao People’s Democratic Republic, UN Doc. CCPR/C/LAO/CO/1 (2019), para. 37.
Human Rights Committee, Concluding Observations: Viet Nam, UN Doc. CCPR/C/VNM/CO/3 (2019), para. 31.
Human Rights Committee, Concluding Observations: Viet Nam, UN Doc. CCPR/C/VNM/CO/3 (2019), para. 32.
United Nations Office on Drugs and Crime, World Health Organization, Joint United Nations Programme on HIV/AIDS, et al., Joint Statement on COVID-19 in Prisons and Other Closed Settings, https://www.unodc.org/documents/Advocacy-Section/20200513_PS_covid-prisons_en.pdf; International Labour Organization, Office of the UN High Commissioner for Human Rights, UN Development Programme, et al., Joint Statement on Compulsory Drug Detention and Rehabilitation Centres (2012); see also Global Commission on HIV and the Law, Risks, Rights and Health (2012), rec. 3.1.1.
United Nations Development Programme, Office of the United Nations High Commissioner for Human Rights, World Health Organization, Joint United Nations Programme on HIV/AIDS, et al., Joint Statement: Compulsory Drug Detention and Rehabilitation Centres in Asia and the Pacific in the Context of COVID-19 (2020).
UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), paras. 1(j), 4(c).
Committee against Torture, Concluding Observations: China, UN Doc. CAT /C/CHN/CO/5 (2016), para. 26.
Committee against Torture, Concluding Observations: China, UN Doc. CAT /C/CHN/CO/5 (2016), paras. 42, 43(b, c).
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/22/53 (2013), para. 41.
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/22/53 (2013), para. 41; Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover, UN Doc. A/65/255 (2010), para. 35.
Report of the Working Group on Arbitrary Detention: Visit to Malyasia, UN Doc. A/HRC/16/47/Add.2 (2011), para. 55.
Committee against Torture, Concluding Observations: Qatar, UN Doc. CAT/C/QAT/CO/3 (2018), paras. 31–32; Human Rights Committee, Concluding Observations: Iran, UN Doc. CCPR/C/IRN/CO/3 (2011), para. 16; Human Rights Committee, Concluding Observations: Barbados, UN Doc. CCPR/C/BRB/CO/3 (2007), para. 12; Committee on Economic, Social and Cultural Rights, Concluding Observations: Rwanda, UN Doc. E/C.12/RWA/CO/2-4 (2013), para. 21; Committee on the Rights of the Child, Concluding Observations: Qatar, UN Doc. CRC/C/QAT/CO/3-4 (2017), paras. 21–22.
Human Rights Committee, Communication No. 792/1998: Higginson v. Jamaica, UN Doc. CCPR/C/74/D/792/1998 (2002) para. 4.6; Human Rights Committee, Communication No. 928/2000: Sooklal v. Trinidad and Tobago, UN Doc. CCPR/C/73/D/928/2000 (2001) para. 4.6; Human Rights Committee, Communication No. 793/1998: Errol Pryce v. Jamaica, UN Doc. CCPR/C/80/D/793/1998 (2004) para. 6.2.
Human Rights Committee, Communication No. 792/1998: Higginson v. Jamaica, UN Doc. CCPR/C/74/D/792/1998 (2002), para. 4.6.
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, UN Doc. A/HRC/13/39 (2010), para. 63.
Human Rights Committee, General Comment No. 20: Prohibition of Torture, UN Doc. HRI/GEN/1/Rev.1 (1994), para. 8; Committee against Torture, General Comment No. 2: Implementation of Article 2 by States Parties, UN Doc. CAT/C/GC/2 (2008), paras. 15, 17, 18; Committee against Torture, Communication No. 161/2000: Hajrizi Dzemajl et al. v. Yugoslavia, UN Doc. CAT/C/29/D/161/2000 (2002), para. 8.12; Committee against Torture, Communication No. 161/2000: Hajrizi Dzemajl et al. v. Yugoslavia, UN Doc. CAT/C/29/D/161/2000 (2002), para. 9.2; see also European Court of Human Rights, Z and Others v. United Kingdom, Application No. 29392/95, 10 May 2001, para. 73.
Committee against Torture, General Comment No. 2: Implementation of Article 2 by States Parties, UN Doc. CAT/C/GC/2 (2008), paras. 15, 17; see also European Court of Human Rights, Opuz v. Turkey, Application No. 3401/02, 9 June 2009, para. 159; see also Committee on the Elimination of Discrimination against Women, Communication No. 17/2008: Maria de Lourdes da Silva Pimentel v. Brazil, UN Doc. CEDAW/C/49/D/17/2008 (2011), para. 7.5 (observing that ‘the State is directly responsible for the action of private institutions when it outsources its medical services’ and ‘always maintains the duty to regulate and monitor private health-care institutions’).
Committee against Torture, Concluding Observations: Guatemala, UN Doc. CAT/C/GTM/CO/5-6 (2013), para. 20.
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]
Arrest
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 drugs[434] 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 torture[437] and the Special Rapporteur on the right to health,[438] as well as treaty bodies, including the Committee on the Rights of the Child[439] 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 needs[460] 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 welfare[478] 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.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/22/44 (2012), para. 75; see also International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 9; [European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (1950), art. 5; American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 7; African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 6; Arab Charter on Human Rights (2004), art. 14; Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), art. 9.
Human Rights Committee, General Comment No. 35: Liberty and Security of Person, UN Doc. CCPR/C/GC/35 (2014), para. 40; Report of the Working Group on Arbitrary Detention: United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court, UN Doc. A/HRC/30/37 (2015), paras. 33, 47(a). Under article 5(e) of the European Convention on Human Rights, both alcoholism and drug addiction are listed as legitimate limitations on the right to liberty and security. However, the European Court of Human Rights has never issued a judgement that engages this limitation in the context of drug addiction. The limited jurisprudence on alcohol intoxication suggests a high bar for lawful detention in this context: ‘whether the person concerned behaved, under the influence of alcohol, in such a way that he posed a threat to the public or endangered his own health, well-being or personal safety, and whether detention of the intoxicated person was the last resort to safeguard the individual or the public interest, because less severe measures have been considered and found to be insufficient. When one of these criteria is not fulfilled, the basis for the deprivation of liberty does not exist’. See European Court of Human Rights, Kharin v. Russia, Application No. 37345/03, 3 February 2011), para. 34
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 9; [European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (1950), art. 5; American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 7; African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 6; Arab Charter on Human Rights (2004), art. 14; Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), art. 9.
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 9(3); Human Rights Committee, General Comment No. 35: Liberty and Security of Person, UN Doc. CCPR/C/GC/35 (2014), para. 38; Report of the Working Group on Arbitrary Detention: Visit to Brazil, UN Doc. A/HRC/27/48/Add.3 (2014), para. 148(b); UN General Assembly, Resolution 45/110: United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules), UN Doc. A/RES/45/110 (1990), rule 6.1; UN General Assembly, Resolution 65/229: United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), UN Doc. A/RES/65/22 (2011), rule 58.
UN General Assembly, Resolution 45/110: United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules), UN Doc. A/RES/45/110 (1990), rule 6.2; see also Global Commission on HIV and the Law, Risks, Rights and Health: Supplement (2018), p. 34, rec. 10.
Human Rights Committee, General Comment No. 35: Liberty and Security of Person, UN Doc. CCPR/C/GC/35 (2014), para. 12.
Human Rights Committee, Communication No. 458/1991: Womah Mukong v. Cameroon, UN Doc. CCPR/C/51/D/458/1991 (1994), para. 9.8; Report of the Working Group on Arbitrary Detention, UN Doc. E/CN.4/2006/7 (2005), para. 64.
Human Rights Committee, Communication No. 305/1988: Hugo van Alphen v. The Netherlands, UN Doc. CCPR/C/39/D/305/1988 (1990), para. 5.8; Human Rights Committee, Communication No. 1502/2006: Marinich v. Belarus, UN Doc. CCPR/C/99/D/1502/2006 (2010), para. 10.4.
Report of the Working Group on Arbitrary Detention: United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court, UN Doc. A/HRC/30/37 (2015), principle 3 and guideline 1.
Report of the Working Group on Arbitrary Detention: United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court, UN Doc. A/HRC/30/37 (2015), principles 17–21 and guidelines 18–21.
Report of the Working Group on Arbitrary Detention: United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court, UN Doc. A/HRC/30/37 (2015), principle 16, para. 28.
Human Rights Committee, Communication No. 458/1991: Womah Mukong v. Cameroon, UN Doc. CCPR/C/51/D/458/1991 (1994), para. 9.8.
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 9(2, 3).
Human Rights Committee, General Comment No. 35: Liberty and Security of Person, UN Doc. CCPR/C/GC/35 (2014), para. 33.
Human Rights Committee, General Comment No. 35: Liberty and Security of Person, UN Doc. CCPR/C/GC/35 (2014), para. 34.
Report of the Working Group on Arbitrary Detention: Visit to Bhutan, UN Doc. A/HRC/42/39/Add.1 (2019), para. 73.
Report of the Working Group on Arbitrary Detention: Visit to Bhutan, UN Doc. A/HRC/42/39/Add.1 (2019), paras. 74, 93(b); Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 9.
Report of the Working Group on Arbitrary Detention: Visit to Bhutan, UN Doc. A/HRC/42/39/Add.1 (2019), para. 93(a, b, e); Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 10.
Subcommittee on Prevention of Torture, Visit to Mexico, UN Doc. CAT/OP/MEX/1 (2010), paras. 104, 182.
Subcommittee on Prevention of Torture, Visit to Mexico, UN Doc. CAT/OP/MEX/1 (2010), para. 104.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), paras. 12–16.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), paras. 11.
Report of the UN High Commissioner for Human Rights: Study on the Impact of the World Drug Problem on the Enjoyment of Human Rights, UN Doc. A/HRC/30/65 (2015), para. 36.
Report of the UN High Commissioner for Human Rights: Study on the Impact of the World Drug Problem on the Enjoyment of Human Rights, UN Doc. A/HRC/30/65 (2015), para. 35.
International Labour Organization, Office of the UN High Commissioner for Human Rights, UN Development Programme, et al., Joint Statement on Compulsory Drug Detention and Rehabilitation Centres (2012).
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/30/36 (2015), para. 60; see also Report of the Working Group on Arbitrary Detention, UN Doc. E/CN.4/2004/3 (2003), paras. 74, 87; Human Rights Committee, General Comment No. 35: Liberty and Security of Person, UN Doc. CCPR/C/GC/35 (2014), para. 15; European Court of Human Rights, Witold Litwa v. Poland, Application No. 26629/95, 4 April 2000, paras. 77–80.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/30/36 (2015), para. 59; Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc. A/68/295 (2013), paras. 40–42.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 99; Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/30/36 (2015), para. 59; Report of the Working Group on Arbitrary Detention: Visit to Sri Lanka, UN Doc. A/HRC/39/45/Add.2 (2019), paras. 54–59.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), paras. 84–89; Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/30/36 (2015), para. 59; Report of the Working Group on Arbitrary Detention: Visit to Brazil, UN Doc. A/HRC/27/48/Add.3 (2014), paras. 111–118; Report of the Working Group on Arbitrary Detention: Visit to the People’s Republic of China, UN Doc. E/CN.4/1998/44/Add.2 (1997), para. 85.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), paras. 84–80; Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/30/36 (2015), paras. 59, 74.
Report of the Working Group on Arbitrary Detention: Deliberation No. 7 on Issues Related to Psychiatric Detention, UN Doc. E/CN.4/2005/6 (2004), para. 47.
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/22/53 (2013), para. 87.
Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, UN Doc. A/65/255 (2010), paras. 30–39; Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health: Mission to Viet Nam, UN Doc. A/HRC/20/15/Add.2 (2012), para. 64(a).
Committee on the Rights of the Child, Concluding Observations: Cambodia, UN Doc. CRC/C/KHM/CO/2-3 (2011), paras. 38–39; Committee on the Rights of the Child, Concluding Observations: Viet Nam, UN Doc. CRC/C/VNM/CO/3-4 (2012), paras. 43–44.
Committee against Torture, Concluding Observations: Cambodia, UN Doc. CAT/C/KHM/CO/2 (2011), para. 20.
Human Rights Committee, Concluding Observations: Lao People’s Democratic Republic, UN Doc. CCPR/C/LAO/CO/1 (2019), para. 37.
Human Rights Committee, Concluding Observations: Viet Nam, UN Doc. CCPR/C/VNM/CO/3 (2019), para. 31.
Human Rights Committee, Concluding Observations: Viet Nam, UN Doc. CCPR/C/VNM/CO/R.3 (2019), para. 32.
Committee against Torture, Concluding Observations: Belarus, UN Doc. CAT/C/BLR/CO/5 (2018), paras. 23–24.
Committee against Torture, Concluding Observations: Rwanda, UN Doc. CAT/C/RWA/CO/2 (2017), para. 30.
Committee against Torture, Concluding Observations: Rwanda, UN Doc. CAT/C/RWA/CO/2 (2017), para. 31.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 17; Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/30/36 (2015), paras. 61–62; Report of the Working Group on Arbitrary Detention: Visit to Malyasia, UN Doc. A/HRC/16/47/Add.2 (2011), paras. 38–39, 41, 97, 109; UN Office on Drugs and Crime, Handbook on Strategies to Reduce Overcrowding in Prisons (2010), p. 95.
Committee on the Elimination of Racial Discrimination, Concluding Observations: United States of America, UN Doc. CERD/C/USA/CO/7-9 (2014), para. 20; Report of the Working Group on Arbitrary Detention: Visit to Nicaragua, UN Doc. A/HRC/4/40/Add.3 (2006), paras. 38, 87.
Human Rights Committee, Concluding Observations: Mauritius, UN Doc. CCPR/C/MUS/CO/5 (2017), paras. 28–29.
Committee against Torture: Concluding Observations: Mauritius, UN Doc. CAT/C/MUS/CO/4 (2017), paras. 21, 22.
Inter-American Commission on Human Rights, Measures Aimed at Reducing the Use of Pretrial Detention in the Americas (2017), para. 90.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 17.
Report of the Working Group on Arbitrary Detention: Visit to Nicaragua, UN Doc. A/HRC/4/40/Add.3 (2002), para. 102(c).
Annual Report of the Working Group on Arbitrary Detention, UN Doc. E/CN.4/2006/7 (2006), para. 66.
Annual Report of the Working Group on Arbitrary Detention, UN Doc. E/CN.4/2006/7 (2006), para. 66; Report of the Working Group on Arbitrary Detention: Visit to Canada, UN Doc. E/CN.4/2006/7/Add.2, para. 63.
Annual Report of the Working Group on Arbitrary Detention, UN Doc. E/CN.4/2006/7 (2006), para. 66; Report of the Working Group on Arbitrary Detention: Visit to the United States of America, UN Doc. A/HRC/36/37/Add.2 (2017), para. 52.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 18; Report of the Working Group on Arbitrary Detention: Visit to the United States of America, UN Doc. A/HRC/36/37/Add.2 (2017), para. 52.
Report of the Working Group on Arbitrary Detention: Visit Canada, UN Doc. E/CN.4/2006/7/Add.2 (2005), para. 92(b).
Report of the Working Group on Arbitrary Detention: Visit to Mexico, UN Doc. E/CN.4/2003/8/Add.3 (2002), paras. 44, 72(a); Report of the Working Group on Arbitrary Detention: Visit to Honduras, UN Doc. A/HRC/4/40/Add.4 (2006), paras. 47, 87; Report of the Working Group on Arbitrary Detention: Visit to El Salvador, UN Doc. A/HRC/22/44/Add.2 (2013), para. 125.
UN General Assembly, Resolution 45/110: United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules), UN Doc. A/RES/45/110 (1990), rule 8.1.
Report of the Working Group on Arbitrary Detention: Visit to Brazil, UN Doc. A/HRC/27/48/Add.3 (2014), para. 148(d); Human Rights Committee, General Comment No. 35: Liberty and Security of Person, UN Doc. CCPR/C/GC/35 (2014), paras. 36–38; Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/19/57 (2011), para. 80; Report of the Working Group on Arbitrary Detention: Visit to El Salvador, UN Doc. A/HRC/22/44/Add.2 (2013), para. 126; UN General Assembly, Resolution 45/110: United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules), UN Doc. A/RES/45/110 (1990), rule 8.2.
Report of the Working Group on Arbitrary Detention: Visit to Nicaragua, UN Doc. A/HRC/4/40/Add.3 (2002), paras. 64–65, 86–87.
Report of the Special Rapporteur on the Independence of Judges and Lawyers, Leandro Despouy: Mission to Maldives, UN Doc. A/HRC/4/25/Add.2 (2007), paras. 55, 58–59.
Human Rights Committee, Concluding Observations: Mauritius, UN Doc. CCPR/CO/83/MUS (2005), para. 15.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), paras. 44–48; Report of the Working Group on Arbitrary Detention: Visit to Mexico, UN Doc. E/CN.4/2003/8/Add.3 (2002), para. 44; Report of the Working Group on Arbitrary Detention: Visit to Nicaragua, UN Doc. A/HRC/4/40/Add.3 (2002), para. 87.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 44; Report of the Working Group on Arbitrary Detention: Visit to Mexico, UN Doc. E/CN.4/2003/8/Add.3 (2002), para. 72(a); Report of the Working Group on Arbitrary Detention: Visit to Nicaragua, UN Doc. A/HRC/4/40/Add.3 (2002), para. 102(c).
Committee on Economic, Social and Cultural Rights, Concluding Observations: Estonia, UN Doc. E/C.12/EST/CO/3 (2019), para. 44(c).
Report of the Working Group on Arbitrary Detention: Visit to Nicaragua, UN Doc. A/HRC/4/40/Add.3 (2002), para. 102(c).
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: Visit to Serbia and Kosovo, UN Doc. A/HRC/40/59/Add.1 (2019), para. 105(d); Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on His Mission to Brazil, UN Doc. A/HRC/31/57/Add.4 (2016), para. 147(f); Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: Mission to Gambia, UN Doc. A/HRC/28/68/Add.4 (2015), para. 107(f).
Report of the Working Group on Arbitrary Detention: Visit to Nicaragua, UN Doc. A/HRC/4/40/Add.3 (2006), para. 102(c); Report of the UN High Commissioner for Human Rights: Study on the Impact of the World Drug Problem on the Enjoyment of Human Rights, UN Doc. A/HRC/30/65 (2015), para. 43; Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 82.
Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, UN Doc. A/65/255 (2010), para. 32; Report of the Special Rapporteur on the Rights of Persons with Disabilities, UN Doc. A/73/161 (2018), paras. 9, 14–15.
Report of the Working Group on Arbitrary Detention: Visit to Canada, UN Doc. E/CN.4/2006/7/Add.2 (2005), para. 57; Report of the High Commissioner for Human Rights on Implementation of the Joint Commitment to Effectively Addressing and Countering the World Drug Problem with Regard to Human Rights, UN Doc. A/HRC/39/39 (2018), paras. 53–54.
Report of the Working Group on Arbitrary Detention: Visit to the People’s Republic of China, UN Doc. E/CN.4/1998/44/Add.2 (1997), paras. 81, 97–99; Report of the Working Group on Arbitrary Detention: Visit to Brazil, UN Doc. A/HRC/27/48/Add.3 (2014), paras. 111–119; Report of the Working Group on Arbitrary Detention: Visit to Malaysia, UN Doc. A/HRC/16/47/Add.2 (2011), paras. 27, 38–39.
Report of the Working Group on Arbitrary Detention: Visit to Sri Lanka, UN Doc. A/HRC/39/45/Add.2 (2018), para. 88; see also Global Commission on HIV and the Law, Risks, Rights and Health (2012), rec. 3.1.4.
Report of the Working Group on Arbitrary Detention, UN Doc. E/CN.4/2004/3 (2003), para. 87.
Committee on the Rights of Persons with Disabilities, Concluding Observations: Peru, UN Doc. CRPD/C/PER/CO/1 (2012), para. 28.
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 36; Convention on Psychotropic Substances, 1019 UNTS 14956 (1971), art. 22; Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 3.
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 39; Convention on Psychotropic Substances, 1019 UNTS 14956 (1971), art. 23.
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 24.
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 3(4)(c, d).
UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), para. 4(j).
Women have the equal right to an adequate standard of living, including the right to food, clothing, and housing. This applies to women involved in the drug trade and dependent on illicit drug economies.
In accordance with this right, States should:
i. Develop specific, viable, and sustainable economic alternatives for women who are particularly at risk of exploitation in the illicit drug economy, including women who use drugs, poor women (whether urban or rural), and women from indigenous and ethnic minority communities.
ii. Take all necessary legislative, administrative, and policy measures to ensure that women’s specific needs and circumstances are taken into account in efforts to address involvement in the drug trade and dependence on illicit drug economies.
iii. Adhere to international standards in all efforts to address and respond to drug-related criminality among women.
iv. Make available gender-specific interventions that aim primarily at diversion from the criminal justice system, and address the underlying factors leading to women coming into contact with the criminal justice system.
With regard to sentencing for drug-related offences, States should:
v. Legislate for and prioritise non-custodial sentences for pregnant women where possible and appropriate.
vi. Ensure that courts have the power to consider mitigating factors in light of women’s caretaking responsibilities, such as lack of criminal history and relative non-severity and nature of the criminal conduct.
vii. Ensure the earliest possible transfer of non-resident foreign-national women prisoners, following the request or informed consent of the woman concerned.
The Committee on the Elimination of Discrimination against Women has expressed concern about the significant increase in the already substantial number of women and girls imprisoned for drug-related offences[719] and in preventive detention on drug-related charges,[720] as well as the limited access to gender-specific health care for these individuals.[721] The Committee has recommended that States enhance economic opportunities for women at risk of involvement in drug trafficking and take measures to reduce the number of women in conflict with the law for drug-related reasons, including through programmes addressing the causes of criminality.[722] It has also recommended that prison reform consider a gender perspective; that greater use of non-custodial sanctions and measures be made; that judicial procedures avoid the overuse of preventive measures; and that adequate health care facilities be provided for women in detention centres.[723]
The Committee on Economic, Social and Cultural Rights has raised concern that predominantly punitive approaches to drug abuse affect women in particular and have ‘contributed to the disproportionate increase in the size of the population deprived of liberty in overcrowded prisons and in poor conditions’.[724]
The Committee against Torture has likewise raised concern about the impact of drug control legislation on the size of the female prison population.[725] Indeed, the Special Rapporteur on violence against women has raised concern that ‘domestic and international anti-drug policies are a leading cause of rising rates of incarceration of women around the world’,[726] observing that women in some jurisdictions are over-represented among low-level, non-violent drug offenders; often have minimal or no previous criminal history; and are generally not principal figures in criminal organisations or activities. Despite this, they have received similar sentences as ‘high level’ drug offenders,[727] or in some cases, serve prison time while more serious offenders enter into plea bargains and avoid imprisonment.[728] The Special Rapporteur has also found that incarceration rates among ethnic minority women are much higher than those among other women.[729] The Special Rapporteur on minority issues has highlighted the large increase in the number of women incarcerated for drug-related crimes, noting in particular the impact on women of African descent, who are highly over-represented in prison populations.[730]
The Special Rapporteur on violence against women has called on States to ensure that sentencing policies reflect an understanding of women’s levels of culpability and control with respect to drug offences and to review laws holding women responsible for association with people involved in drug activities, even where they have little or no knowledge of these activities. The Special Rapporteur has also recommended that gender-sensitive drug treatment programmes be provided in women’s prisons.[731] The UN Working Group on Arbitrary Detention has raised concern that poor and otherwise marginalised women, particularly mothers and housewives, often bear the brunt of harsh anti-drug legislation, facing incarceration for minor drug crimes while those responsible for more serious offences, if caught, can use their financial resources to evade punishment[732] and that women’s lack of access to legal representation and negative stereotypes about women charged with drug-related offenses may limit opportunities to seek plea bargains or reduced sentences.[733] The Working Group also has raised concern that some women incarcerated for drug-related offences have been coerced into drug-related activities by husbands or partners, or for drugs in their home that belong to their partners, and that pregnant woman convicted of drug-related offences cannot benefit from the alternatives to incarceration available to those convicted of other crimes.[734]
The UN Working Group on the Issue of Discrimination against Women in Law and in Practice has raised concern about the drastic rise in the number of women in prison globally and has noted that in some parts of the world, this increase can be attributed mainly to women being convicted of drug-related offences.[735] The Working Group has observed that proportionally, women are more likely than men to be incarcerated for drug-related crimes and that while they tend to be engaged at lower levels of the drug trade, they may receive harsher sentences than those responsible for more serious offences.[736] This disparity is due to the fact that they may have fewer opportunities to negotiate for lesser punishments, given their low status within criminal drug networks and because in some jurisdictions, the work that women do, such as transporting drugs, is subject to harsher punishment than offences committed by people at higher levels of these networks.[737] The Working Group also has raised concern about the disproportionate criminalisation of indigenous and racial minority women among the lower levels of drug networks.[738]
The Working Group on the Issue of Discrimination against Women in Law and in Practice has highlighted that violence is often used as a tool to coerce women to become drug couriers.[739] Women who are engaged in the drug trade or who use drugs may be reluctant to report such violence to law enforcement, for fear that doing so will subject them to further violence or discrimination.[740]
The Committee on the Elimination of Discrimination against Women recommends that States enhance economic opportunities for women at risk of involvement in drug trafficking and take measures to reduce the number of women in conflict with the law for drug-related reasons, including through programmes addressing the causes of criminality.[741] The UN General Assembly Special Session 2016 Outcome Document likewise recommends that States identify and address the conditions that make women vulnerable to exploitation and participation in drug trafficking, including as couriers.[742] Several countries have already enacted legislative and policy reforms to address the harmful consequences of drug control efforts on women, taking into account their age, economic status, caretaking responsibility, and pregnancy,[743] as well as the specific circumstances of poor, foreign women imprisoned as drug couriers.[744]
The Committee on the Elimination of Discrimination against Women and the Special Rapporteur on violence against women have called on States to develop gender-specific alternatives to incarceration, in line with the Bangkok Rules.[745] These rules encourage alternative measures and sanctions that take into account the accused’s history, the circumstances of the offence, and her care responsibilities, and they recommend the use of alternatives to incarceration for non-violent offences and the adoption of gender-specific measures to address the needs of women who use drugs.[746] They also recommend the earliest possible transfer of non-resident foreign-national women prisoners to their home country with their consent, especially if the women have children there, taking advantage of relevant bilateral or multilateral agreements.[747] The Mandela Rules provide further guidance on the treatment of women prisoners.[748]
The Commission on Narcotic Drugs has also encouraged UN Member States to take into account the specific needs and circumstances of women subject to arrest, detention, prosecution, and sentencing for drug-related offences when developing crime prevention and criminal justice measures, drawing on, as appropriate, the Bangkok Rules, the Mandela Rules, and the Tokyo Rules.[749] The UN General Assembly Special Session 2016 Outcome Document likewise encourages consideration of the specific needs and circumstances of women in prison for drug offences, in line with the Bangkok Rules and also referring to the Mandela Rules and Tokyo Rules.[750]
Committee on the Elimination of Discrimination against Women, Concluding Observations: Canada, UN Doc. CEDAW/C/CAN/CO/8-9 (2016), para. 44; Committee on the Elimination of Discrimination against Women, Concluding Observations: Brazil, UN Doc. CEDAW/C/BRA/CO/7 (2012), para. 32; Committee on the Elimination of Discrimination against Women, Concluding Observations: UK, UN Doc. A/54/38 (1999), para. 312.
Committee on the Elimination of Discrimination against Women, Concluding Observations: Chile, UN Doc. CEDAW/C/CHL/CO/7 (2018), para. 48.
Committee on the Elimination of Discrimination against Women, Concluding Observations: Chile, UN Doc. CEDAW/C/CHL/CO/7 (2018), para. 49.
Committee on the Elimination of Discrimination against Women, Concluding Observations: Brazil, UN Doc. CEDAW/C/BRA/CO/7 (2012), paras. 32–33; Committee on the Elimination of Discrimination against Women, Concluding Observations: Colombia, UN Doc. CEDAW/C/COL/CO/6 (2007), paras. 20–21.
Committee on the Elimination of Discrimination against Women, Concluding Observations: Chile, UN Doc. CEDAW/C/CHL/CO/7 (2018), para. 49.
Committee on Economic, Social and Cultural Rights, Concluding Observations: Ecuador, UN Doc. E/C.12/ECU/CO/4 (2019), para. 47.
Committee against Torture, Concluding Observations: Argentina, UN Doc. CAT/C/ARG/CO/5-6 (2017), para. 15.
Rashida Manjoo, Special Rapporteur on Violence against Women: Pathways to, Conditions and Consequences of Incarceration for Women, UN Doc. A/68/340 (2013), para. 23.
Report of the Special Rapporteur on Violence against Women, Rashida Manjoo: Mission to the United States of America, UN Doc. A/HRC/17/26/Add.5 (2011), para. 45.
Rashida Manjoo, Special Rapporteur on Violence against Women: Pathways to, Conditions and Consequences of Incarceration for Women, UN Doc. A/68/340 (2013), para. 26.
Report of the Special Rapporteur on Violence against Women, Rashida Manjoo: Mission to the United States of America, UN Doc. A/HRC/17/26/Add.5 (2011), para. 55; Rashida Manjoo, Special Rapporteur on Violence against Women: Pathways to, Conditions and Consequences of Incarceration for Women, UN Doc. A/68/340 (2013), para. 25.
Report of the Special Rapporteur on Minority Issues on Her Mission to Brazil, UN Doc. A/HRC/31/56/Add.1 (2016), para. 59.
Report of the Special Rapporteur on Violence against Women, Rashida Manjoo: Mission to the United States of America, UN Doc. A/HRC/17/26/Add.5 (2011), paras. 55, 115 (e, g).
Report of the Working Group on Arbitrary Detention: Visit to Nicaragua, UN Doc. A/HRC/4/40/Add.3 (2006), para. 86.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 59.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), paras. 45, 58; Report of the Working Group on the Issue of Discrimination against Women in Law and in Practice: Women Deprived of Liberty, UN Doc. A/HRC/41/33 (2019), para. 63.
United Nations, ‘Women’s Rights Must Be Central in Drug Policies, Say UN Experts at the Commission on Narcotics in Drugs’, 13 March 2019, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=24330&LangID=E.
Report of the Working Group on the Issue of Discrimination against Women in Law and in Practice: Women Deprived of Liberty, UN Doc. A/HRC/41/33 (2019), para. 32.
Report of the Working Group on the Issue of Discrimination against Women in Law and in Practice: Women Deprived of Liberty, UN Doc. A/HRC/41/33 (2019), para. 32.
Report of the Working Group on the Issue of Discrimination against Women in Law and in Practice: Women Deprived of Liberty, UN Doc. A/HRC/41/33 (2019), para. 62.
Report of the Working Group on the Issue of Discrimination against Women in Law and in Practice: Women Deprived of Liberty, UN Doc. A/HRC/41/33 (2019), para. 69.
Report of the Working Group on the Issue of Discrimination against Women in Law and in Practice: Women Deprived of Liberty, UN Doc. A/HRC/41/33 (2019), para. 68
Committee on the Elimination of Discrimination against Women, Concluding Observations: Brazil, UN Doc. CEDAW/C/BRA/CO/7 (2012), paras. 32–33; Committee on the Elimination of Discrimination against Women, Concluding Observations: Colombia, UN Doc. CEDAW/C/COL/CO/6 (2007), paras. 20–21.
UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), annex, para. 4(d).
See, e.g., Argentina, Criminal Procedure Code, art. 495; Paraguay, Criminal Procedure Code, art. 238; Paraguay, Penal Code, art. 43; Colombia, Criminal Procedures Code, art. 314; Venezuela, Organic Criminal Procedures Code; Costa Rica, Law 9161 (2013).
See UK Sentencing Council, ‘Drug Mules: Twelve Case Studies’, March 2011, https://www.sentencingcouncil.org.uk/wp-content/uploads/Drug_mules_bulletin.pdf; UK Sentencing Council, ‘Response to Consultation’, 2012, http://www.sentencingcouncil.org.uk/wp-content/uploads/Drug_Offences_Response-web2.pdf.
Committee on the Elimination of Discrimination against Women, General Recommendation No. 33: Women’s Access to Justice, UN Doc. CEDAW/C/GC/33 (2015), paras. 48, 51; Rashida Manjoo, Special Rapporteur on Violence against Women: Pathways to, Conditions and Consequences of Incarceration for Women, UN Doc. A/68/340 (2013), paras. 82–83; see also Committee on the Elimination of Discrimination against Women, Concluding Observations: Cambodia, UN Doc. CEDAW/C/KHM/CO/6 (2019), paras. 44–45.
UN General Assembly, Resolution 65/229: United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), UN Doc. A/RES/65/22 (2011), rules 14, 15, 24(2), 30, 41, 57, 58, 61, 62, 64.
UN General Assembly, Resolution 65/229: United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), UN Doc. A/RES/65/22 (2011), rule 53.
UN Commission on Crime Prevention and Criminal Justice, UN Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), UN Doc. E/CN.15/2015/L.6/Rev.1 (2015), rules 28, 89, 93, 94.
Commission on Narcotic Drugs, Resolution 59/5: Mainstreaming a Gender Perspective in Drug-Related Policies and Programmes (2016).
UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), para. 4(n).
Children have the rights to health, to be heard in matters related to their own health care, and to decisions based on clinical need in the best interests of the child, including decisions related to interventions for children who use drugs.
In accordance with these rights, States should:
i. Develop accessible, child-sensitive prevention, drug dependence treatment, and harm reduction services.
ii. Ensure that decisions regarding access to drug-related health services are taken in the best interests of the child, with due regard to their evolving capacities.
iii. Remove legal age restrictions on existing drug-related health services.
iv. Ensure that young people who use drugs have access to drug-related health information, and counselling without parental or guardian consent, and that treatment or harm reduction service provision without parental or guardian consent is possible when in the best interests of the individual.
Where these interventions concern drug-related criminality, States should:
v. Target efforts primarily at diversion from the criminal justice system and promote rehabilitation over punishment.
vi. Refrain from criminalising children because of their drug use or possession of drugs for personal use.
vii. Adhere to international juvenile justice standards in all efforts to address and respond to drug-related criminality among children and young people.
The Committee on the Rights of the Child has repeatedly called for ‘child-sensitive’ and ‘youth friendly’ drug treatment and harm reduction services.[637] It has consistently recommended that States Parties put in place and adequately fund such services for this age group[638] and has condemned the practice of placing children in compulsory drug detention and rehabilitation centres.[639] The Working Group on Arbitrary Detention has also recommended that drug treatment and harm reduction services be made available to children on a voluntary basis, without oversight or mandate by the judiciary, and with health care services provided by health professionals.[640] Treatment and harm reduction services should be of sufficient quality and acceptable for the needs of this age group, based on the dynamics of drug use among them. Similarly, the UN General Assembly Special Session 2016 Outcome Document promotes ‘non-discriminatory access to a broad range of interventions … giving special attention to the specific needs of … children and youth’.[641]
To facilitate access to services for those in need, legal age restrictions on existing services should be removed[642] and parental consent conditions should be amended.[643] Legal age restrictions inhibit the ability to conduct best interests assessments[644] based on clinical need[645] and in consultation with the young person.[646] While parental consent or support for access to services and health information may be desirable, it should not be a compulsory condition of access. The Committee on the Rights of the Child has been consistent on this matter with regard to adolescent health and sexual and reproductive services.[647] Alternative methods for determining children’s access to services, rooted in the best interests of the child, have been developed through case law on sexual and reproductive health services.[648] In some countries, these methods have already been adapted to drug-related services.[649]
A range of children’s rights treaties and provisions apply in the context of drug-related criminality. The UN General Assembly Special Session 2016 Outcome Document recognises the importance of ensuring that ‘the specific needs, including mental and physical needs, of underage drug offenders and children affected by drug-related crime are appropriately considered, including in criminal justice proceedings where required, including by providing those in need with drug treatment and related support services’.[650] In addition, international juvenile justice standards are set out in the Convention on the Rights of the Child,[651] the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (also known as the Beijing Rules), the United Nations Guidelines for the Prevention of Juvenile Delinquency (also known as the Riyadh Guidelines), the United Nations Rules for the Protection of Juveniles Deprived of Their Liberty, and the Guidelines for Action on Children in the Criminal Justice System.[652] These all emphasise the need for a focus on drug use prevention and drug treatment for those involved in the juvenile justice system.[653] Beyond such provisions, however, juvenile justice standards apply in their entirety to children involved in drug-related criminality. For example, the minimum age of criminal responsibility should be suitably high, and dual ages of criminal responsibility applying a lower age for drug offences should be avoided. Moreover, the detention of children should be avoided wherever possible.[654]
Children should not be criminalised for their drug use. The Committee on the Rights of the Child has been consistent on this matter due to criminalisation’s counterproductive effects and has recommended the repeal of laws criminalising drug use among children.[655] A high court in South Africa has held that the criminalisation of the possession of cannabis for personal use, where the same conduct was not criminalised for adults, violates children’s rights to equality and – given the profound negative impact of exposure to the criminal justice system – the right to have their best interests taken into account.[656]
Committee on the Rights of the Child, General Comment No. 20: Implementation of the Rights of the Child during Adolescence, UN Doc. CRC/C/GC/20 (2016), para. 64; Committee on the Rights of the Child, Concluding Observations: Luxembourg, UN Doc. CRC/C/15/Add.92 (1998), para. 39; Committee on the Rights of the Child, Concluding Observations: Iraq, UN Doc. CRC/C/15/Add.94 (1998), para. 23; Committee on the Rights of the Child, Concluding Observations: Czech Republic, UN Doc. CRC/C/15/Add.201 (2003), para. 51; Committee on the Rights of the Child, Concluding Observations: Moldova, UN Doc. CRC/C/MDA/CO/3 (2009), para. 55(g); Committee on the Rights of the Child, Concluding Observations: Tunisia, UN Doc. CRC/C/TUN/CO/3 (2010), para. 54; Concluding Observations: Austria, UN Doc. CRC/C/AUT/CO/3-4 (2012), para. 51; Committee on the Rights of the Child, Concluding Observations: Fiji, UN Doc. CRC/C/FJI/CO/2-4 (2014), para. 52; Concluding Observations: Ghana, UN Doc. CRC/C/GHA/CO/3-5 (2015), para. 52(f); Committee on the Rights of the Child, Concluding Observations: Angola, UN Doc. CRC/C/AGO/CO/5-7 (2018), para. 30(a); Concluding Observations: Portugal, UN Doc. CRC/C/PRT/CO/5-6 (2019), para. 36(c); Concluding Observations: Micronesia, UN Doc. CRC/C/FSM/CO/2 (2020), para. 55(d); Concluding Observations: Cook Islands, UN Doc. CRC/C/COK/CO/2-5 (2020), para. 43(3); Concluding Observations: Belarus, UN Doc. CRC/C/BLR/CO/5-6 (2020), para. 34(a).
Committee on the Rights of the Child, Concluding Observations: Luxembourg, UN Doc. CRC/C/15/Add.92 (1998), para. 39; Committee on the Rights of the Child, Concluding Observations: Iraq, UN Doc. CRC/C/15/Add.94 (1998), para. 23; Committee on the Rights of the Child, Concluding Observations: Czech Republic, UN Doc. CRC/C/15/Add.201 (2003), para. 51; Committee on the Rights of the Child, Concluding Observations: Moldova, UN Doc. CRC/C/MDA/CO/3 (2009), para. 55(g); Committee on the Rights of the Child, Concluding Observations: Tunisia, UN Doc. CRC/C/TUN/CO/3 (2010), para. 54; Committee on the Rights of the Child, Concluding Observations: Austria, UN Doc. CRC/C/AUT/CO/3-4 (2012), para. 51; Committee on the Rights of the Child, Concluding Observations: Fiji, UN Doc. CRC/C/FJI/CO/2-4 (2014), para. 52; Committee on the Rights of the Child, General Comment No. 20: Implementation of the Rights of the Child during Adolescence, UN Doc. CRC/C/GC/20 (2016), para. 64.
Committee on the Rights of the Child, Concluding Observations: Cambodia, UN Doc. CRC/C/KHM/CO/2-3 (2011), paras. 38–39; Committee on the Rights of the Child, Concluding Observations: Viet Nam, UN Doc. CRC/C/VNM/CO/3-4 (2012), paras. 43–44.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 71.
UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), para. 1(k).
Committee on the Rights of the Child, Concluding Observations: Moldova, UN Doc No CRC/C/MDA/CO/4–5 (2017), para 34(f).
See Committee on the Rights of the Child, Concluding Observations: South Africa, UN Doc. CRC/C/15/Add.122 (2000), para. 31; Committee on the Rights of the Child, Concluding Observations: Turkey, UN Doc. CRC/C/15/Add.152 (2001), para. 54.
Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 3.
Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 24.
Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 12.
See, e.g., Committee on the Rights of the Child, Concluding Observations: Marshall Islands, UN Doc. CRC/C/15/Add.139 (2000), para. 51; Committee on the Rights of the Child, Concluding Observations: Latvia, UN Doc. CRC/C/15/Add.142 (2001), para. 40.
Gillick v. West Norfolk and Wisbech AHA [1985] UKHL 7.
See, e.g., National Institute for Healthcare and Clinical Excellence (UK), Needle and Syringe Programmes: Public Health Guideline (2014); see also World Health Organization, Technical Brief: HIV and Young People Who Inject Drugs (2015).
UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), para. 4(e).
Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 40.
UN General Assembly, Resolution 40/33: United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), UN Doc. A/RES/40/33 (1985); UN General Assembly, Resolution 45/112: United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), UN Doc. A/RES/45/112 (1990); UN General Assembly, Resolution 45/113: United Nations Rules for the Protection of Juveniles Deprived of Their Liberty, UN Doc. A/RES/45/113 (1990); Economic and Social Council, Guidelines for Action on Children in the Criminal Justice System, UN Doc. E/RES/1997/30 (1997).
In particular, UN General Assembly, Resolution 45/112: United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), UN Doc. A/RES/45/112 (1990), paras. 25, 35, 44, 45.
See also Committee on the Rights of the Child, General Comment No. 10: Children’s Rights in Juvenile Justice, UN Doc. CRC/C/GC/10 (2007).
Committee on the Rights of the Child, Concluding Observations: United Kingdom (Isle of Man), UN Doc. CRC/C/15/Add.134 (2000), para. 38; Committee on the Rights of the Child, Concluding Observations: Indonesia, UN Doc. CRC/C/15/Add.223 (2004), para. 72; Committee on the Rights of the Child, Concluding Observations: Armenia, UN Doc. CRC/C/15/Add.225 (2004), paras. 62–63; Committee on the Rights of the Child, Concluding Observations: Bolivia, UN Doc. CRC/C/15/Add.256 (2005), para. 62(c); Committee on the Rights of the Child, Concluding Observations: Norway, UN Doc. CRC/C/15/Add.263 (2005), para. 44(b); Committee on the Rights of the Child, Concluding Observations: Denmark, UN Doc. CRC/C/DNK/CO/3 (2005), para. 55(d); Committee on the Rights of the Child, Concluding Observations: Russian Federation, UN Doc. CRC/C/RUS/CO/3 (2005), para. 77(b); Committee on the Rights of the Child, Concluding Observations: Kiribati, UN Doc. CRC/C/KIR/CO/1 (2006), para. 49(c); Committee on the Rights of the Child, Concluding Observations: Marshall Islands, UN Doc. CRC/C/MHL/CO/2 (2007), para. 55(c); Committee on the Rights of the Child, Concluding Observations: Afghanistan, UN Doc. CRC/C/AFG/CO/1 (2011), para. 52(d); Committee on the Rights of the Child, General Comment No. 20: Implementation of the Rights of the Child during Adolescence, UN Doc. CRC/C/GC/20 (2016), para. 64.
In the Matter of the State and LM and 3 Others, Director of Public Prosecutions, Minister of Justice and Correctional Services, Minister of Social Development, Minister of Health, Minister of Basic Education, Minister of Police and Centre for Child Law (amicus curiae), High Court of South Africa, Gauteng, Local Division, Johannesburg, Case Nos. 97/18, 98/18, 99/18, and 100/18 [2020].
Torture and other cruel, inhuman, or degrading treatment or punishment are absolutely prohibited, in all circumstances. This includes during the arrest, questioning, and detention of persons alleged to have committed drug-related crimes or otherwise implicated during an investigation. The withholding of drugs from those who need them for medical purposes, including for drug dependence treatment and pain relief, is considered a form of torture.
In accordance with this right, States shall:
i. Take effective legislative, administrative, judicial, and other measures to prohibit, prevent, and redress all acts of torture and ill-treatment in their jurisdiction and in all settings under their custody or control, including in the context of drug dependence treatment, whether administered in public or private facilities.
ii. Promptly investigate allegations of torture and cruel, inhuman, or degrading treatment or punishment by State agents, as well as acts that occur in their territory or under their jurisdiction (whether carried out by State or non-State actors), and prosecute and punish those responsible, including when victims are persons alleged to have committed drug-related offences or who are dependent on drugs.
iii. Avoid extraditing or otherwise forcibly returning or transferring individuals to another State where there are substantial grounds to believe that they are at risk of subjection to torture or cruel, inhuman, or degrading treatment or punishment, including by non-State actors over which the receiving State has no or only partial control or whose acts the receiving State cannot prevent, or because they risk expulsion to a third State where they may be in danger of subjection to torture or other prohibited ill-treatment.
iv. Abolish corporal punishment for drug offences where it is in place.
In addition, States should:
v. Ensure access to essential medicines, including for drug dependence, pain treatment, and palliative care.
vi. Ensure that access to health care for people who use or are dependent on drugs and are in places of detention is equivalent to that available in the community.
vii. Establish a national system to effectively monitor drug dependence treatment practices and to inspect drug dependence treatment centres, as well as places of detention, including migrant detention centres, police stations, and prisons.
The prohibition against torture and other cruel, inhuman, or degrading treatment or punishment is enshrined in numerous international and regional treaties and other instruments.[355] This prohibition is absolute and non-[356] The obligation to prohibit, prevent, and redress torture and ill-treatment extends to all acts by State and non-State actors[357] and to all contexts of custody and control, including prisons, hospitals, ‘and other institutions as well as contexts where the failure of the State to intervene encourages and enhances the danger of privately inflicted harm’.[358]
Policing practices
The Committee against Torture, the Human Rights Committee, the Working Group on Arbitrary Detention, and the Special Rapporteur on torture have found that the use of violence by law enforcement officials and the withholding of opioid substitution therapy or otherwise inducing withdrawal to coerce confessions or obtain information – for example, about other people who use drugs or to reveal dealers or suppliers – constitute ill-treatment and possibly torture.[359] The Committee against Torture has urged that States take ‘all measures necessary to effectively protect drug users deprived of liberty against the infliction of pain and suffering associated with withdrawal by police, including to extract confessions; ensure such confessions are not admitted by the courts; and provide drug users in detention with adequate access to necessary medical treatment’.[360]
The use of violence by law enforcement officials and of withdrawal to coerce confessions or obtain information also contravenes international standards for law enforcement, in particular the UN Code of Conduct for Law Enforcement Officials, which states that torture by law enforcement officials cannot be justified in any circumstance and instructs such officials to ensure the ‘full protection of persons in their custody’ and ‘take immediate action to secure medical attention whenever required’.[361] Other policing practices may infringe the right to freedom from cruel, inhuman, and degrading treatment. For example, the European Court of Human Rights has found that forcing regurgitation – which causes physical pain and mental suffering – to retrieve evidence of a drug offence that could have been obtained by less intrusive methods constitutes inhuman and degrading treatment.[362]
Pretrial detention
The Committee against Torture and the Special Rapporteur on torture have raised concerns about criminal laws on narcotics that provide that people arrested under such laws can be held for lengthy periods without being brought before a judge and without having access to legal counsel. They have found that such regimes leave the accused vulnerable to a high risk of torture and ill-treatment. They have thus recommended that such laws be amended and that States otherwise ensure judicial procedure guarantees as part of efforts to prevent torture.[363]
Prison and other closed settings
Abuse among prisoners, from subtle forms of harassment to intimidation and serious physical and sexual attacks, are common.[364] People who use drugs and other vulnerable populations might face heightened risk of violence by other detainees, especially where States have delegated detainees with the authority to maintain discipline.[365] The employment of detainees in such disciplinary capacity violates international standards.[366] Moreover, States have a positive obligation to exercise due diligence to prevent violence among those in their custody. Inter-prisoner violence may amount to torture or ill-treatment if States fail to act with due diligence to prevent it.[367]
Extradition and other forcible return or transfer
Prohibition of the extradition and other forcible return or transfer of an individual to a country where there are substantial grounds for believing that they may face torture or cruel, inhuman, or degrading treatment or punishment by State or non-State actors is enshrined in international and regional human rights instruments. For example, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment expressly provides that ‘[n]o State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture’.[368]
Limits on extradition and other forms of forcible transfer under the Convention against Torture also apply where there are substantial grounds for believing that the person in question would be in danger of subjection to torture or ill-treatment at the hands of non-State actors over whom the receiving State has no or only partial de facto control, whose acts the State is unable to prevent, or who otherwise operate with impunity in the receiving State.[369] The International Covenant on Civil and Political Rights[370] and regional human rights instruments likewise protect individuals from extradition and other forms of transfer in cases of torture and cruel, inhuman, or degrading treatment or punishment.[371] The Committee against Torture has raised specific concerns that a government expelling foreigners convicted of drug trafficking and banning them from the country for a period seriously risks violating the principle of non-refoulement.[372]
Health services and cruel, inhuman, or degrading treatment
UN human rights mechanisms have concluded that the denial, removal, or discontinuation of effective drug dependence treatment, such as opioid substitution therapy, including in custodial settings, may violate the prohibition against cruel, inhuman, or degrading treatment or punishment.[373] Government failure to ensure access to controlled medicines for pain relief may also constitute cruel, inhuman, or degrading treatment or punishment, where, for example, a person’s suffering is severe and meets the minimum level of severity under the prohibition against torture and ill-treatment; where the State is, or should be, aware of the person’s suffering, including when no appropriate treatment was offered; and where the State failed to take all reasonable steps to protect the person’s physical and mental integrity.[374] Withholding antiretroviral treatment from people living with HIV who use drugs – based on the assumption that they will not be able to adhere to said treatment – has been deemed cruel and inhuman treatment in light of the physical and psychological suffering it causes.[375]
In addition, States have an obligation to ensure that incarcerated individuals have access to the same level of health care available in the general community, including services related to drug use and drug dependence.[376] Failure to do so may amount to cruel, inhuman, or degrading treatment or punishment.[377]
Independent oversight of places of deprivation of liberty
The Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment defines ‘deprivation of liberty’ as ‘any form of detention or imprisonment or the placement of a person in a public or private custodial setting which that person is not permitted to leave at will by order of any judicial, administrative or other authority’.[378]
International norms on the treatment of people deprived of liberty require that regular inspections of places of deprivation of liberty be performed by the administration of the institution and a body independent of it. The Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment requires that States Parties ‘set up, designate or maintain at the domestic level one or several visiting bodies for the prevention of torture and other cruel, inhuman or degrading treatment or punishment’, called ‘national preventive mechanisms’,[379] and guarantee the functional independence and independence of the personnel of these mechanisms.[380] The Special Rapporteur on torture has recommended that States ‘ensure that all places of detention are subjected to effective oversight and inspection and unannounced visits by independent bodies established in conformity with the Optional Protocol to the Convention against Torture as well as by civil society monitors; and ensure the inclusion of women and lesbian, gay, bisexual and transgender persons and other minority representation on monitoring bodies’.[381] The Special Rapporteur has also recommended that States monitor places of detention in a gender-sensitive manner[382] and ‘set up operational protocols, codes of conduct, regulations and training modules for the ongoing monitoring and analysis of discrimination against women, girls, and lesbian, gay, bisexual and transgender persons with regard to access to all services and rehabilitation programmes in detention; and document, investigate, sanction and redress complaints of imbalance and direct or indirect discrimination in accessing services and complaint mechanisms’.[383]
The UN Standard Minimum Rules for the Treatment of Prisoners (also known as the Mandela Rules) and the UN Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (also known as the Bangkok Rules) also provide guidance on the conducting of such inspections,[384] specifying, among other things, that bodies tasked with monitoring, inspection, and supervision should include women members.[385]
Drug detention centres
In some countries, people who are suspected of drug use are held in compulsory drug detention centres, often without medical evaluation, judicial review, or right of appeal and undergo detention, physical disciplinary exercises (such as military-style drills), and forced labour as ‘treatment’, in plain disregard of medical evidence and in violation of international human rights protections, including against torture and ill-treatment. The Committee against Torture, the Committee on the Rights of the Child, the Committee on Economic, Social and Cultural Rights, the Human Rights Committee, the Special Rapporteurs on torture and on the right to health, and the Working Group on Arbitrary Detention have raised concerns about torture and ill-treatment in compulsory drug detention centres, calling for their immediate closure; an end to financial and technical support for such centres; prompt, thorough, impartial investigations of abuses; the prosecution of alleged perpetrators and, if found guilty, punishment commensurate with the seriousness of their acts; and adequate redress for victims.[386] In addition, the Committee on the Rights of the Child has urged the release, without delay, of children in drug detention centres and the establishment of an independent, child-sensitive mechanism to receive complaints against law enforcement officers and to provide victims with redress.[387]
The Human Rights Committee has raised concern about arbitrary arrest and detention without due process,[388] as well as compulsory detoxification, forced labour, inadequate medical care, and onerous work conditions in drug detention centres.[389] 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.[390]
In 2012, 12 UN entities called for the immediate closure of such facilities, as well as the immediate release of those detained.[391] In 2020, 13 UN entities, recalling the 2012 joint statement on compulsory drug detention centres, likewise called on States operating compulsory drug detention centres to close them permanently without delay and to implement voluntary, evidence- and rights-based health and social services in the community as part of efforts to curb the spread of COVID-19.[392] Moreover, the UN General Assembly Special Session 2016 Outcome Document places an emphasis on people’s ‘voluntary participation’ in treatment programmes and the need to ‘prevent any possible acts of cruel, inhuman or degrading treatment or punishment’ in drug treatment and rehabilitation facilities.[393]
Solitary confinement, judicial corporal punishment, and corporal punishment as ‘treatment’
The Committee against Torture has expressed concern about the use of solitary confinement in drug treatment centres ‘when persons undergoing treatment are not “reformed through education” or do not obey discipline’, among other grounds.[394] The Committee has also expressed concern about the extended use of administrative detention, such as measures of ‘compulsory isolation in drug treatment centres’. It has called for the abolition of all forms of administrative detention, ‘which confine individuals without due process and make them vulnerable to abuse’, and for the prioritisation of community-based or alternative social-care services for people with drug dependence.[395]
The Special Rapporteurs on health and on torture have raised concerns about State-sanctioned beatings, caning, or whipping,[396] as well as ‘flogging therapy’ [397]in the guise of ‘treatment’, at compulsory drug detention centres. The UN Working Group on Arbitrary Detention has received reports of the caning of prisoners found guilty of drug trafficking or drug possession.[398] The Human Rights Committee, the Committee against Torture, the Committee on Economic, Social and Cultural Rights, and the Committee on the Rights of the Child have called for the abolition of corporal punishment, whether imposed under criminal or administrative proceedings.[399] The Human Rights Committee has stated that corporal punishment constitutes ill-treatment or punishment contrary to article 7 of the Covenant, irrespective of the nature of the crime being punished or the permissibility of corporal punishment under domestic law.[400] The Committee has also recognised that the imposition of a sentence of corporal punishment violates prohibitions against torture and ill-treatment, regardless of whether the sentence is carried out.[401] The Special Rapporteur on torture has also concluded that ‘without exception’, corporal punishment amounts to cruel, inhuman, or degrading punishment or torture and is absolutely prohibited in international law.[402]
Private actors
The obligation to prohibit, prevent, and redress torture applies to acts by State and non-State actors alike[403] and to all contexts of custody and control, including prisons, hospitals, ‘and other institutions as well as contexts where the failure of the State to intervene encourages and enhances the danger of privately inflicted harm’.[404] The obligation therefore extends to private facilities.
The Committee against Torture has raised concern about poor conditions in private drug treatment centres and ill-treatment inflicted upon persons admitted to them. The Committee calls for the taking of all steps necessary to prevent and punish ill-treatment in such centres and for the prompt, thorough, and effective investigation of all complaints of ill-treatment in these centres, ensuring that the persons responsible are brought to trial and, if found guilty, receive penalties commensurate with the seriousness of their acts.[405]
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 7; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46 (1984), arts. 2, 16; [European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (1950), art. 3; American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 1; African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 5; Arab Charter on Human Rights (2004), art. 8; Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), art. 5.
Committee against Torture, General Comment No. 2: Implementation of Article 2 by States Parties, UN Doc. CAT/C/GC/2 (2008), paras. 1, 2; Committee against Torture, Concluding Observations: Australia, UN Doc. CAT/C/AUS/CO/3 (2008), para. 18; Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, UN Doc. E/CN.4/1985/4 (1984), para. 27.
Human Rights Committee, General Comment No. 20: Prohibition of Torture, UN Doc. HRI/GEN/1/Rev.1 (1994), para. 8; Committee against Torture, General Comment No. 2: Implementation of Article 2 by States Parties, UN Doc. CAT/C/GC/2 (2008), paras. 15, 17, 18; Committee against Torture, Communication No. 161/2000: Hajrizi Dzemajl et al. v. Yugoslavia, UN Doc. CAT/C/29/D/161/2000 (2002), paras. 8.12, 9.2; see also European Court of Human Rights, Z and Others v. United Kingdom, Application No. 29392/95, 10 May 2001, para. 73.
Committee against Torture, General Comment No. 2: Implementation of Article 2 by States Parties, UN Doc. CAT/C/GC/2 (2008), paras. 15, 17; European Court of Human Rights, Opuz v. Turkey, Application No. 3401/02, 9 June 2009, para. 159; see also Committee on the Elimination of Discrimination against Women, Communication No. 17/2008: Maria de Lourdes da Silva Pimentel v. Brazil, UN Doc. CEDAW/C/49/D/17/2008 (2011), para. 7.5.
Committee against Torture, Concluding Observations: Russia, UN Doc. CAT/C/RUS/6 (2018), para. 20; Human Rights Committee, Concluding Observations: Russian Federation, UN Doc. CCPR/RUS/CO/7 (2015), para. 16; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak: Addendum, Mission to Indonesia, UN Doc. A/HRC/7/3/Add.7 (2008), paras. 22, 64, 70–71, 80, 108–109, 127, 139, 140, 142; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/22/53 (2013), para. 73; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, Addendum: Mission to Uruguay, UN Doc. A/HRC/13/39/Add.2 (2009), para. 85; Interim report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc. A/68/295 (2013), para. 68; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, UN Doc. A/HRC/10/44 (2009), para. 57; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak: Addendum, Mission to Indonesia, UN Doc. A/HRC/7/3/Add.7 (2009), para. 22; Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), paras. 21–23.
Committee against Torture, Concluding Observations: Russia, UN Doc. CAT/C/RUS/6 (2018), para. 21.
UN General Assembly, Resolution 34/169: Code of Conduct for Law Enforcement Officials, UN Doc. A/RES/34/169 (1979), arts. 5, 6.
European Court of Human Rights, Jalloh v. Germany, Application No. 54810/00, 11 July 2006.
Committee against Torture, Concluding Observations: Mauritania, UN Doc. CAT/C/MRT/CO/2 (2018), paras. 8–9; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez: Mission to Mauritania, UN Doc. A/HRC/34/54/Add.1 (2017), paras. 75, 117.
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/68/295 (2013), para. 47.
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/68/295 (2013), para. 47.
UN Commission on Crime Prevention and Criminal Justice, UN Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), UN Doc. E/CN.15/2015/L.6/Rev.1 (2015), rule 40.
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/68/295 (2013), para. 48; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, UN Doc. A/HRC/13/39/Add.3 (2009), para. 28.
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46 (1984), art. 3; see also Committee against Torture, Committee against Torture, General Comment No. 4: The Implementation of Article 3 in the Context of Article 22 (2018), para. 9; Committee against Torture, General Comment No. 2: Implementation of Article 2 by States Parties, UN Doc. CAT/C/GC/2 (2008), paras. 3, 6, 19, 25.
Committee against Torture, General Comment No. 4: The Implementation of Article 3 in the Context of Article 22 (2018), para. 30.
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 7; Human Rights Committee, General Comment No. 20: Prohibition of Torture, UN Doc. HRI/GEN/1/Rev.1 (1994), para. 9; Human Rights Committee, Communication No. 470/1991: Kindler v. Canada, UN Doc. CCPR/C/48/D/470/1991 (1993); Human Rights Committee, Communication No. 469/1991: Chitat Ng v. Canada, UN Doc. CCPR/C/49/D/469/1991 (1994); Human Rights Committee, Communication No. 539/1993: Cox v. Canada, UN Doc. CCPR/C/52/D/539/1993 (1994).
[European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (1950), art. 3; African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 5; Inter-American Convention to Prevent and Punish Torture, O.A.S. Treaty Series No. 67 (1987), art. 2; see also 1951 Convention relating to the Status of Refugees, 189 UNTS 137 (1951), art. 33; Organization for African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa (1969), arts. 1(1, 2), 2(3). From the jurisprudence of the European Court of Human Rights, see, e.g., European Court of Human Rights, Soering v. United Kingdom, Application No. 14038/88, 7 July 1989; European Court of Human Rights, Cruz Varas v. Sweden, Application No. 15576/89, 20 March 1991; European Court of Human Rights, Vilvarajah and Others v. United Kingdom, Application Nos. 13163/87, 13164/87, 13165/87, 13447/87, 13448/87, 30 October 1991.
Committee against Torture, Concluding Observations: Switzerland, UN Doc. CAT/C/CHE/CO/6 (2010), para. 11.
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, UN Doc. A/HRC/10/44 (2009), paras. 57, 74(e); Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/22/53 (2013); see also European Court of Human Rights, Bensaid v. the United Kingdom, Application No. 44599/98, 6 May 2001, para. 37.
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, UN Doc. A/HRC/10/44 (2009), para. 72; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/22/53 (2013), paras. 54, 56.
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/22/53 (2013), para. 73; see also Committee against Torture, Communication No. 672/2015: D.C. and D.E v. Georgia, UN Doc. CAT/C/62/D/672/2015 (2017).
Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover, UN Doc. A/65/255 (2010), para. 60.
Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc. A/68/295 (2013), paras. 26, 54.
Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 2375 UNTS 237 (2002), art. 4(1).
Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 2375 UNTS 237 (2002), art. 4(2).
Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 2375 UNTS 237 (2002), art. 18(1).
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/31/57 (2016), para. 20(y).
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/31/57 (2016), para. 20(x).
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/31/57 (2016), para. 20(w).
UN Commission on Crime Prevention and Criminal Justice, UN Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), UN Doc. E/CN.15/2015/L.6/Rev.1 (2015), rules 83–85.
UN General Assembly, Resolution 65/229: United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), UN Doc. A/RES/65/22 (2011), rule 25(3).
See, e.g., Committee against Torture, Concluding Observations: Belarus, UN Doc. CAT/C/BLR/5 (2018), paras. 23–24; Committee against Torture, Concluding Observations: Guatemala, UN Doc. CAT/C/GTM/CO/5-6 (2013), paras. 20–21; Committee against Torture, Concluding Observations: Guatemala, UN Doc. CAT/C/GTM/CO/7 (2018), paras. 30–31; Committee against Torture, Concluding Observations: Turkmenistan, UN Doc. CAT//C/TKM/CO/2(2017), para. 8(d); Committee against Torture, Concluding Observations: China, UN Doc. CAT/C/CHN/CO/5 (2016), paras. 26, 42–43; Human Rights Committee, Concluding Observations: Cambodia, UN Doc. CCPR/C/KHM/CO/2 (2015), para. 16; Committee on the Rights of the Child, Concluding Observations: Cambodia, UN Doc. CRC/C/KHM/CO/2-3 (2011), paras. 38–39; Committee on Economic, Social and Cultural Rights, Concluding Observations: Belarus, UN Doc. E/C.12/BLR/CO/4-6 (2013), para. 15; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/22/53 (2013), paras. 42, 87(a); Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover, UN Doc. A/65/255 (2010), paras. 30–39; Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health: Mission to Viet Nam, UN Doc. A/HRC/20/15/Add.2 (2012), para. 64(a); Report of the Working Group on Arbitrary Detention, UN Doc. A/HRCC/47/40 (2021), paras. 86, 126 (e, f); United Nations, ‘Statement by the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health on the Protection of People Who Use Drugs during the COVID-19 Pandemic’, 16 April 2020, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25797.
Committee on the Rights of the Child, Concluding Observations: Cambodia, UN Doc. CRC/C/KHM/CO/2-3 (2011), para. 39.
Human Rights Committee, Concluding Observations: Lao People’s Democratic Republic, UN Doc. CCPR/C/LAO/CO/1 (2019), para. 37.
Human Rights Committee, Concluding Observations: Viet Nam, UN Doc. CCPR/C/VNM/CO/3 (2019), para. 31.
Human Rights Committee, Concluding Observations: Viet Nam, UN Doc. CCPR/C/VNM/CO/3 (2019), para. 32.
United Nations Office on Drugs and Crime, World Health Organization, Joint United Nations Programme on HIV/AIDS, et al., Joint Statement on COVID-19 in Prisons and Other Closed Settings, https://www.unodc.org/documents/Advocacy-Section/20200513_PS_covid-prisons_en.pdf; International Labour Organization, Office of the UN High Commissioner for Human Rights, UN Development Programme, et al., Joint Statement on Compulsory Drug Detention and Rehabilitation Centres (2012); see also Global Commission on HIV and the Law, Risks, Rights and Health (2012), rec. 3.1.1.
United Nations Development Programme, Office of the United Nations High Commissioner for Human Rights, World Health Organization, Joint United Nations Programme on HIV/AIDS, et al., Joint Statement: Compulsory Drug Detention and Rehabilitation Centres in Asia and the Pacific in the Context of COVID-19 (2020).
UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), paras. 1(j), 4(c).
Committee against Torture, Concluding Observations: China, UN Doc. CAT /C/CHN/CO/5 (2016), para. 26.
Committee against Torture, Concluding Observations: China, UN Doc. CAT /C/CHN/CO/5 (2016), paras. 42, 43(b, c).
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/22/53 (2013), para. 41.
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/22/53 (2013), para. 41; Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover, UN Doc. A/65/255 (2010), para. 35.
Report of the Working Group on Arbitrary Detention: Visit to Malyasia, UN Doc. A/HRC/16/47/Add.2 (2011), para. 55.
Committee against Torture, Concluding Observations: Qatar, UN Doc. CAT/C/QAT/CO/3 (2018), paras. 31–32; Human Rights Committee, Concluding Observations: Iran, UN Doc. CCPR/C/IRN/CO/3 (2011), para. 16; Human Rights Committee, Concluding Observations: Barbados, UN Doc. CCPR/C/BRB/CO/3 (2007), para. 12; Committee on Economic, Social and Cultural Rights, Concluding Observations: Rwanda, UN Doc. E/C.12/RWA/CO/2-4 (2013), para. 21; Committee on the Rights of the Child, Concluding Observations: Qatar, UN Doc. CRC/C/QAT/CO/3-4 (2017), paras. 21–22.
Human Rights Committee, Communication No. 792/1998: Higginson v. Jamaica, UN Doc. CCPR/C/74/D/792/1998 (2002) para. 4.6; Human Rights Committee, Communication No. 928/2000: Sooklal v. Trinidad and Tobago, UN Doc. CCPR/C/73/D/928/2000 (2001) para. 4.6; Human Rights Committee, Communication No. 793/1998: Errol Pryce v. Jamaica, UN Doc. CCPR/C/80/D/793/1998 (2004) para. 6.2.
Human Rights Committee, Communication No. 792/1998: Higginson v. Jamaica, UN Doc. CCPR/C/74/D/792/1998 (2002), para. 4.6.
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, UN Doc. A/HRC/13/39 (2010), para. 63.
Human Rights Committee, General Comment No. 20: Prohibition of Torture, UN Doc. HRI/GEN/1/Rev.1 (1994), para. 8; Committee against Torture, General Comment No. 2: Implementation of Article 2 by States Parties, UN Doc. CAT/C/GC/2 (2008), paras. 15, 17, 18; Committee against Torture, Communication No. 161/2000: Hajrizi Dzemajl et al. v. Yugoslavia, UN Doc. CAT/C/29/D/161/2000 (2002), para. 8.12; Committee against Torture, Communication No. 161/2000: Hajrizi Dzemajl et al. v. Yugoslavia, UN Doc. CAT/C/29/D/161/2000 (2002), para. 9.2; see also European Court of Human Rights, Z and Others v. United Kingdom, Application No. 29392/95, 10 May 2001, para. 73.
Committee against Torture, General Comment No. 2: Implementation of Article 2 by States Parties, UN Doc. CAT/C/GC/2 (2008), paras. 15, 17; see also European Court of Human Rights, Opuz v. Turkey, Application No. 3401/02, 9 June 2009, para. 159; see also Committee on the Elimination of Discrimination against Women, Communication No. 17/2008: Maria de Lourdes da Silva Pimentel v. Brazil, UN Doc. CEDAW/C/49/D/17/2008 (2011), para. 7.5 (observing that ‘the State is directly responsible for the action of private institutions when it outsources its medical services’ and ‘always maintains the duty to regulate and monitor private health-care institutions’).
Committee against Torture, Concluding Observations: Guatemala, UN Doc. CAT/C/GTM/CO/5-6 (2013), para. 20.
All persons deprived of their liberty must be treated with humanity and with respect for the inherent dignity of the person. This includes those held in prisons and other closed settings and places of detention for drug-related reasons. Such persons have the right to a standard of health care equivalent to that available to the general population.
In accordance with these rights, States should:
i. Adhere at all times to the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules).
ii. Adhere at all times to international standards relating to specific groups deprived of their liberty, including women (the Bangkok Rules) and children (the Beijing Rules).
iii. Ensure that all persons deprived of their liberty have access to voluntary and evidence-based health services, including harm reduction and drug treatment services, as well as essential medicines, including HIV and hepatitis C services, at a standard that is equivalent to that in the community.
iv. Organise such drug-related and other health care services in close parallel with general public health administration, taking into account the specific nature of individuals’ detention, and design services to ensure the continuity of harm reduction, drug treatment, and access to essential medicines through transitions of entering and exiting the detention facility, as well as transfer between institutions.
v. Ensure that drug-related and other health care services for these populations are provided by qualified medical personnel able to make independent, evidence-based decisions for their patients.
vi. Ensure the provision of training for health care professionals and other staff working in prisons and other closed settings and places of detention on drug treatment, harm reduction, and palliative care and pain management, as well as other medical conditions that require the use of controlled substances for medical purposes.
The act of depriving a person of liberty imposes specific and enhanced obligations on States. Both the right to life and the prohibition of torture and other forms of cruel, inhuman, or degrading treatment or punishment create obligations to refrain from inflicting harm on a detainee.[765] At the same time, States have ‘positive obligations’ to do everything reasonably possible to safeguard the lives and well-being of those being detained.[766]
The International Covenant on Civil and Political Rights imposes further positive obligations on the State to ensure minimum standards of treatment consistent with the humanity and inherent dignity of the person.[767] In the context of drug control, persons in pre-trial detention or imprisoned after conviction for drug-related offences should not be subjected to harsher treatment than other persons in detention or in places of imprisonment. This has particular relevance for the deprivation of liberty on the basis of drug offences and for the detention or imprisonment of persons who use drugs (regardless of their criminal charge or conviction), as well as for standards of health care available to such persons.
States have legal obligations to ensure that people deprived of their liberty have adequate access to good-quality health facilities, goods, services, and information equivalent to those available in the general community, which are necessary to meet State obligations under the right to health[768] and the prohibition on torture and ill-treatment.[769] This includes the obligation to provide access to voluntary, evidence-based drug treatment and harm reduction services,[770] including needle and syringe programmes and opioid substitution therapies,[771] and to provide people deprived of liberty naloxone during their detention and upon their release.[772] Guidance by the UN Office on Drugs and Crime, World Health Organization, United Nations Development Programme, Joint United Nations Programme on HIV/AIDS, International Labour Organization, and UN Population Fund also recommends that that naloxone be made available to people in prison, prison staff, and other people in prisons and other closed settings who might witness an opioid overdose and provided to people upon release from prison to prevent post-release overdose deaths.[773]
A number of UN human rights treaty bodies have raised concerns that the excessive use of incarceration and pre-trial detention as a drug control measure and disproportionate punishments for drug use and minor drug-related crimes have resulted in serious prison overcrowding, calling into question States’ compliance with their obligations to prevent torture and ill-treatment and to protect the right to health.[774] They urge States to consider the greater use of non-custodial measures in line with the Tokyo Rules[775] and recommend that States reconsider their penalisation of drug use as part of a health- and rights-based approach to drug use.[776] The UN Working Group on Arbitrary Detention has found that over-incarceration for drug-related offences contributes significantly to prison overcrowding, which can call into question a State’s compliance with guarantees that everyone in detention shall be treated with humanity and respect for their dignity.[777]
The Special Rapporteur on the right to health has recommended that States take measures to protect against the spread of COVID-19 in prisons and other detention centres, including by considering the early release of prisoners with drug dependence and other health vulnerabilities (such as HIV, hepatitis C, and tuberculosis) and those charged with minor and non-drug-related crimes, and to adequately plan for the health care of those released.[778] The Special Rapporteur has recommended that in the context of the COVID-19 emergency, wherever compulsory drug treatment centres operate, States ‘should take immediate measures to close such centres, release people detained in such centres, and replace such facilities with voluntary, evidence-based care and support in the community’.[779] The Special Rapporteur has further recommended that adequately funded, effective measures be put in place to ensure that those released from prisons and other detention settings have continuity of care, as well as access to adequate housing and health care in the community. Thirteen UN entities, recalling the 2012 joint statement on compulsory drug detention centres, have likewise called on States operating compulsory drug detention centres to close them permanently without delay and to implement voluntary, evidence- and rights-based health and social services in the community as part of efforts to curb the spread of COVID-19.[780]
The UN General Assembly Special Session 2016 Outcome Document promotes the provision of drug treatment and harm reduction services both in the community and in prisons, with a special emphasis on imprisoned women who use drugs.[781] Such services must include ‘gender-sensitive and evidence-based drug treatment services to reduce harmful effects for women who use drugs, including harm reduction programmes for women in detention’.[782] The denial, removal, or discontinuation of effective drug treatment and harm reduction services in prisons and other places of detention violates the right to health and may in some circumstances contribute to conditions that meet the threshold of cruel, inhuman, or degrading treatment or punishment.[783]
Technical guidance from the World Health Organization and UN Office on Drugs and Crime recommends that health personnel in prison have complete professional independence from prison authorities and preferably be employed by a health authority. Prison health services should be integrated into national health policies and systems and be fully independent of prison administrations, yet liaise effectively with them.[784] The Committee of Ministers of the Council of Europe has likewise concluded that national health authorities should be responsible for health care provision in prisons, which would facilitate the continuity of treatment and ‘enable prisoners and staff to benefit from wider developments in treatments, in professional standards and in training’.[785] A number of countries have already transferred responsibility of prison health care to public health services because of concern about the quality of care and the role of medical staff.[786]
The UN has adopted detailed norms for the fulfilment of the above obligations. Such norms include the Mandela Rules, the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, the Basic Principles for the Treatment of Prisoners, the Bangkok Rules, the Beijing Rules, the Riyadh Guidelines, the United Nations Rules for the Protection of Juveniles Deprived of Their Liberty, and the Guidelines for Action on Children in the Criminal Justice System.[787] These instruments are of general application and, for the most part, are not specifically tailored to the treatment of persons who may have drug-related issues during detention or imprisonment. However, both the Mandela Rules and the Bangkok Rules include guidance directly related to drug use, cited by the UN General Assembly Special Session 2016 Outcome Document.[788]
The Mandela Rules include three provisions of particular relevance. The first notes that the provision of health care for prisoners is a State responsibility and that people in prison should enjoy the same standard of health care as that available in the community, free of charge and without discrimination on grounds of their legal status.[789] The second states that ‘[h]ealth-care service should be organized in close relationship to the general public health administration and in a way that ensures continuity and care, including for HIV, tuberculosis and other infectious diseases, as well as for drug dependence’.[790] The third notes that ‘[a] physician or other qualified health care professional … shall see, talk with and examine every prisoner as soon as possible following their admission and thereafter as necessary’ and that ‘[p]articular attention should be paid to … withdrawal signs from the use of drugs … and undertaking all appropriate individualized measures or treatment’.[791]
The Bangkok Rules also include numerous relevant provisions. They establish that HIV/AIDS programmes and services in penal institutions ‘shall be responsive to the specific needs of women, including prevention of mother-to-child transmission’ and that ‘[i]n this context, prison authorities shall encourage and support the development of initiatives on HIV prevention, treatment and care, such as peer-based education’.[792] Furthermore, they establish that prison health services ‘shall provide or facilitate specialized treatment programmes designed for women substance abusers, taking into account prior victimization, the special needs of pregnant women and women with children, as well as their diverse cultural backgrounds’.[793] Similar to the Mandela Rules, the Bangkok Rules provide that for women prisoners and detainees, ‘[h]ealth-care service should be organized in close relationship to the general public health administration and in a way that ensures continuity and care, including for HIV, tuberculosis and other infectious diseases, as well as for drug dependence’.[794] Furthermore, ‘[a] physician or other qualified health care professional … shall see, talk with and examine every prisoner as soon as possible following her admission and thereafter as necessary’, and ‘[p]articular attention should be paid to … withdrawal signs from the use of drugs … and undertaking all appropriate individualized measures or treatment’.[795] Finally, ‘[t]he provision of gender-sensitive, trauma-informed, women-only substance abuse treatment programmes in the community and women’s access to such treatment shall be improved, for crime prevention as well for diversion and alternative sentencing’.[796]
Regarding the issue of staff attending to people deprived of liberty, the Mandela Rules instruct that all prison staff, prior to entering duty, be provided with training tailored to their general and specific duties and then also provided with ongoing in-service training that includes material on the rights and duties of prison staff in the exercise of their functions, such as respecting the human dignity of all prisoners and the prohibition of certain conduct, particularly torture and other cruel, inhuman, or degrading treatment or punishment.[797] Prison staff who work with certain categories of prisoners or who are assigned other specialised functions should receive training that has a corresponding human rights focus.[798] The Bangkok Rules further require that all staff assigned to work with women prisoners receive training relating to these prisoners’ gender-specific needs and human rights.[799]
UN human rights mechanisms have called attention to the multiple and extreme forms of violence faced by LGBTI persons, which is exacerbated when they are deprived of their liberty and subjected to serious violence and to abuse, including sexual assault and rape, by fellow inmates and staff.[800] Transgender people, especially transgender women, are often housed in prisons according to their sex assigned at birth, and exposed to a high risk of rape and other violence and ill-treatment.[801] The lack of training and polices aimed at understanding the needs of LGBTI people, recognising people’s self-identified gender, and carrying out proper risk assessments compounds these problems.[802] UN human rights mechanisms have recommended that States adopt legislative, administrative, and judicial measures to address and prevent violence against LGBTI people in prison, stressing the fundamental importance of the involvement of LGBTI people in the design, implementation, and evaluation of measures to prevent torture and ill-treatment against them.[803]
Guidance issued by the UN Office on Drugs and Crime, World Health Organization, United Nations Development Programme, Joint United Nations Programme on HIV/AIDS, International Labour Organization, and UN Population Fund recommends that the comprehensive package of HIV prevention, care, and treatment interventions, which includes needle and syringe programmes, overdose prevention and management, opioid substitution therapy, and other evidence-based medical treatment, be tailored to the specific needs of women and transgender people, including with respect to sexual and reproductive health and hormone therapy (according to national guidance), and equivalent to services in the community. The guidance also notes the need for initiatives to acknowledge and address sexual and other forms of violence faced by women, men who have sex with men, and transgender people in prison and highlights the importance of ensuring that representatives of different population groups in prison – including adolescents and young people, women, men, people who inject drugs, transgender people, and people living with HIV – enjoy meaningful participation in the planning, implementing, and monitoring of prison HIV, tuberculosis, and hepatitis programmes in order to develop effective strategies that are responsive to their respective realities.[804]
See, e.g., International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), arts. 6, 7.
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 10; American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 5; African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 5; Arab Charter on Human Rights (2004), art. 20(1); UN General Assembly, Resolution 45/111: Basic Principles for the Treatment of Prisoners, UN Doc. A/RES/45/111 (1990), principle 1; UN General Assembly, Resolution 43/173: Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, UN Doc. A/RES/43/173 (1988), principle 1; African Commission on Human and Peoples’ Rights, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2003), principle M(7); Inter-American Commission on Human Rights, Resolution 1/08: Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas (2008), principle 1; Council of Europe, European Prison Rules (2006), rules 1, 72.
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 10.
Committee on Economic, Social and Cultural Rights, Concluding Observations: Lithuania, UN Doc. E/C.12/LTU/CO/2 (2014), para. 21; Committee on Economic, Social and Cultural Rights, Concluding Observations: Mauritius, UN Doc. E/C.12/MUS/CO/4 (2010), para. 27; Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover, UN Doc. A/65/255 (2010), para. 60.
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/22/53 (2013), paras. 73–74; see also Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Report on the Follow-Up Visit to the Republic of Paraguay, UN Doc. CAT/OP/PRY/2 (2011) para. 109; Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Visit to Poland Undertaken from 9 to 18 July 2018, UN Doc. CAT/OP/POL/ROSP/1 (2020), para. 109; Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Visit to Ukraine, UN Doc. CAT/OP/UKR/3 (2017), para. 32.
Human Rights Committee, Concluding Observations: The Netherlands, UN Doc. CCPR/C/NLD/CO/5 (2019), para. 41(c); Committee against Torture, Concluding Observations: Russia, UN Doc. CAT/C/RUS/6 (2018), para. 21(c); Committee against Torture, Concluding Observations: Tajikistan, UN Doc. CAT/C/TJK/CO/3 (2018), para. 24(a); Committee on the Elimination of Racial Discrimination, Concluding Observations: Canada, UN Doc. CERD/C/CAN/CO/21-23 (2017), para. 16(e); Committee on the Elimination of Discrimination against Women, Concluding Observations: Canada, UN Doc. CEDAW/C/CAN/CO/8-9 (2016), para. 49(c); Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Report on the Follow-Up Visit to the Republic of Paraguay from 13 to 15 September 2010, UN Doc. CAT/OP/PRY/2 (2011), para. 167; Committee on Economic, Social and Cultural Rights, Concluding Observations: Poland, UN Doc. E/C.12/POL/CO/6 (2016), para. 54; Committee on Economic, Social and Cultural Rights, Concluding Observations: Sweden, UN Doc. E/C.12/SWE/CO/6 (2016), para. 42; Committee on Economic, Social and Cultural Rights, Concluding Observations: Lithuania, UN Doc. E/C.12/LTU/CO/2 (2014), para. 21; Committee on the Elimination of Discrimination against Women, Concluding Observations: Georgia, UN Doc. CEDAW/C/GEO/CO/4-5 (2014), para. 31(e); Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak: Mission to Kazakhstan, UN Doc. A/HRC/13/39/Add.3 (2009), para. 85(b); Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Nils Melzer: Mission to Ukraine, UN Doc. A/HRC/40/59/Add.3 (2019), para. 121(e, f); Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover: Mission to Azerbaijan, UN Doc. A/HRC/23/41/Add.1 (2013), para. 60(g); Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, UN Doc. A/HRC/10/44 (2009), para. 71.
See, e.g., Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Nils Melzer, UN Doc. A/HRC/40/59/Add.3 (2019), para. 121(f); Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Visit to Portugal, UN Doc. CAT/OP/PRT/1 (2019), paras. 102–103; Smith v. Aroostook Cty. and Gillen, No. 19-1340 (1st Cir. 2019); Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 126(j); see also European Court of Human Rights, Wenner v. Germany, Application No. 62303/1, 12 January 2016, para. 81.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 126(k).
UN Office on Drugs and Crime, World Health Organization, UN Development Programme, et al., HIV Prevention, Testing, Treatment, Care and Support in Prisons and Other Closed Settings: A Comprehensive Package of Interventions (2020).
Committee against Torture, Concluding Observations: Russia, UN Doc. CAT/C/RUS/6 (2018), paras. 21. 38(c); Committee against Torture, Concluding Observations: Philippines, UN Doc. CAT/C/PHL/CO/3 (2016), para. 13; Committee on Economic, Social and Cultural Rights, Concluding Observations: Mauritius, UN Doc. E/C.12/MUS/CO/5 (2019), para. 53(a); Committee on Economic, Social and Cultural Rights, Concluding Observations: Dominican Republic, UN Doc. E/C.12/DOM/CO/4 (2016), para. 62; Committee on the Elimination of Discrimination against Women, Concluding Observations: Canada, UN Doc. CEDAW/C/CAN/CO/8-9 (2016), para. 44; Human Rights Committee, Concluding Observations: Portugal, UN Doc. CCPR/C/PRT/CO/4 (2012), para. 11; Report of the High Commissioner for Human Rights on Implementation of the Joint Commitment to Effectively Addressing and Countering the World Drug Problem with Regard to Human Rights, UN Doc. A/HRC/39/39 (2018).
Committee against Torture, Concluding Observations: Philippines, UN Doc. CAT/C/PHL/CO/3 (2016), para. 14; Committee on Economic, Social and Cultural Rights, Concluding Observations: Dominican Republic, UN Doc. E/C.12/DOM/CO/4 (2016), para. 63; Committee on Economic, Social and Cultural Rights, Concluding Observations: Ecuador, UN Doc. E/C.12/ECU/CO/4 (2019), para. 48(b).
Committee on Economic, Social and Cultural Rights, Concluding Observations: Dominican Republic, UN Doc. E/C.12/DOM/CO/4 (2016), para. 63.
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 10; see Report of the Working Group on Arbitrary Detention: Visit to Mexico, UN Doc. E/CN.4/2003/8/Add.3 (2002), para. 44; Report of the Working Group on Arbitrary Detention: Visit to Nicaragua, UN Doc. A/HRC/4/40/Add.3 (2006), para. 64; Implementation of General Assembly Resolution 60/251 of 15 March 2006 Entitled ‘Human Rights Council’: Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/4/40 (2007), paras. 59–80.
United Nations, ‘Statement by the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health on the Protection of People Who Use Drugs during the COVID-19 Pandemic’, 16 April 2020, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25797.
United Nations, ‘Statement by the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health on the Protection of People Who Use Drugs during the COVID-19 Pandemic’, 16 April 2020, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25797#_edn3.
United Nations Development Programme, Office of the United Nations High Commissioner for Human Rights, World Health Organization, Joint United Nations Programme on HIV/AIDS, et al., Joint Statement: Compulsory Drug Detention and Rehabilitation Centres in Asia and the Pacific in the Context of COVID-19 (2020).
UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), paras. 1(k, o), 4(b, n).
Committee on the Elimination of Discrimination against Women, Concluding Observations: Georgia, UN Doc. CEDAW/C/GEO/CO/4-5 (2014), para. 31(e).
Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover, UN Doc. A/65/255 (2010), paras. 29, 55; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/22/53 (2013), paras. 73, 74; see also Committee against Torture, Concluding Observations: Cape Verde, UN Doc. CAT/C/CPV/CO/1 (2017), para. 25(e).
World Health Organization/Europe and UN Office on Drugs and Crime, Good Governance for Prison Health in the 21st Century: A Policy Brief on the Organization of Prison Health (2013).
World Health Organization/Europe and UN Office on Drugs and Crime, Good Governance for Prison Health in the 21st Century: A Policy Brief on the Organization of Prison Health (2013).
World Health Organization/Europe and UN Office on Drugs and Crime, Good Governance for Prison Health in the 21st Century: A Policy Brief on the Organization of Prison Health (2013).
UN Commission on Crime Prevention and Criminal Justice, UN Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), UN Doc. E/CN.15/2015/L.6/Rev.1 (2015); UN General Assembly, Resolution 65/229: United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), UN Doc. A/RES/65/22 (2011); UN General Assembly, Resolution 43/173: Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, UN Doc. A/RES/43/173 (1988); UN General Assembly, Resolution 45/111: Basic Principles for the Treatment of Prisoners, UN Doc. A/RES/45/111 (1990); UN General Assembly, Resolution 40/33: United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), UN Doc. A/RES/40/33 (1985); UN General Assembly, Resolution 45/112: United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), UN Doc. A/RES/45/112 (1990); UN General Assembly, Resolution 45/113: United Nations Rules for the Protection of Juveniles Deprived of Their Liberty, UN Doc. A/RES/45/113 (1990); Economic and Social Council, Guidelines for Action on Children in the Criminal Justice System, UN Doc. E/RES/1997/30 (1997).
UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), para. 4(m, n).
UN Commission on Crime Prevention and Criminal Justice, UN Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), UN Doc. E/CN.15/2015/L.6/Rev.1 (2015), rule 24(1).
UN Commission on Crime Prevention and Criminal Justice, UN Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), UN Doc. E/CN.15/2015/L.6/Rev.1 (2015), rule 24(2).
UN Commission on Crime Prevention and Criminal Justice, UN Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), UN Doc. E/CN.15/2015/L.6/Rev.1 (2015), rule 30.
UN General Assembly, Resolution 65/229: United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), UN Doc. A/RES/65/22 (2011), rule 14.
UN General Assembly, Resolution 65/229: United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), UN Doc. A/RES/65/22 (2011), rule 15.
UN General Assembly, Resolution 65/229: United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), UN Doc. A/RES/65/22 (2011), rule 24(2).
UN General Assembly, Resolution 65/229: United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), UN Doc. A/RES/65/22 (2011), rule 30.
UN General Assembly, Resolution 65/229: United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), UN Doc. A/RES/65/22 (2011), rule 62.
UN Commission on Crime Prevention and Criminal Justice, UN Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), UN Doc. E/CN.15/2015/L.6/Rev.1 (2015), rule 75(2).
UN Commission on Crime Prevention and Criminal Justice, UN Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), UN Doc. E/CN.15/2015/L.6/Rev.1 (2015), rule 76(2).
UN General Assembly, Resolution 65/229: United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), UN Doc. A/RES/65/22 (2011), rule 33(1).
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Sir Nigel Rodley, UN Doc. A/56/156 (2001), para. 23; Ninth Annual Report of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc. CAT/C/57/4 (2016), paras. 62–64; United Nations, ‘Targeted and Tortured: UN Experts Urge Greater Protection for LGBTI People in Detention’, 23 June 2016, https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=20165&LangID=E.
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Sir Nigel Rodley, UN Doc. A/56/156 (2001), para. 23; Ninth Annual Report of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc. CAT/C/57/4 (2016), para. 66; United Nations, ‘Targeted and Tortured: UN Experts Urge Greater Protection for LGBTI People in Detention’, 23 June 2016, https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=20165&LangID=E.
Ninth Annual Report of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc. CAT/C/57/4 (2016), para. 51; United Nations, ‘Targeted and Tortured: UN Experts Urge Greater Protection for LGBTI People in Detention’, 23 June 2016, https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=20165&LangID=E.
United Nations, ‘Targeted and Tortured: UN Experts Urge Greater Protection for LGBTI People in Detention’, 23 June 2016, https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=20165&LangID=E.
UN Office on Drugs and Crime, World Health Organization, UN Development Programme, et al., HIV Prevention, Testing, Treatment, Care and Support in Prisons and Other Closed Settings: A Comprehensive Package of Interventions (2020).
Women have the equal right to an adequate standard of living, including the right to food, clothing, and housing. This applies to women involved in the drug trade and dependent on illicit drug economies.
In accordance with this right, States should:
i. Develop specific, viable, and sustainable economic alternatives for women who are particularly at risk of exploitation in the illicit drug economy, including women who use drugs, poor women (whether urban or rural), and women from indigenous and ethnic minority communities.
ii. Take all necessary legislative, administrative, and policy measures to ensure that women’s specific needs and circumstances are taken into account in efforts to address involvement in the drug trade and dependence on illicit drug economies.
iii. Adhere to international standards in all efforts to address and respond to drug-related criminality among women.
iv. Make available gender-specific interventions that aim primarily at diversion from the criminal justice system, and address the underlying factors leading to women coming into contact with the criminal justice system.
With regard to sentencing for drug-related offences, States should:
v. Legislate for and prioritise non-custodial sentences for pregnant women where possible and appropriate.
vi. Ensure that courts have the power to consider mitigating factors in light of women’s caretaking responsibilities, such as lack of criminal history and relative non-severity and nature of the criminal conduct.
vii. Ensure the earliest possible transfer of non-resident foreign-national women prisoners, following the request or informed consent of the woman concerned.
The Committee on the Elimination of Discrimination against Women has expressed concern about the significant increase in the already substantial number of women and girls imprisoned for drug-related offences[719] and in preventive detention on drug-related charges,[720] as well as the limited access to gender-specific health care for these individuals.[721] The Committee has recommended that States enhance economic opportunities for women at risk of involvement in drug trafficking and take measures to reduce the number of women in conflict with the law for drug-related reasons, including through programmes addressing the causes of criminality.[722] It has also recommended that prison reform consider a gender perspective; that greater use of non-custodial sanctions and measures be made; that judicial procedures avoid the overuse of preventive measures; and that adequate health care facilities be provided for women in detention centres.[723]
The Committee on Economic, Social and Cultural Rights has raised concern that predominantly punitive approaches to drug abuse affect women in particular and have ‘contributed to the disproportionate increase in the size of the population deprived of liberty in overcrowded prisons and in poor conditions’.[724]
The Committee against Torture has likewise raised concern about the impact of drug control legislation on the size of the female prison population.[725] Indeed, the Special Rapporteur on violence against women has raised concern that ‘domestic and international anti-drug policies are a leading cause of rising rates of incarceration of women around the world’,[726] observing that women in some jurisdictions are over-represented among low-level, non-violent drug offenders; often have minimal or no previous criminal history; and are generally not principal figures in criminal organisations or activities. Despite this, they have received similar sentences as ‘high level’ drug offenders,[727] or in some cases, serve prison time while more serious offenders enter into plea bargains and avoid imprisonment.[728] The Special Rapporteur has also found that incarceration rates among ethnic minority women are much higher than those among other women.[729] The Special Rapporteur on minority issues has highlighted the large increase in the number of women incarcerated for drug-related crimes, noting in particular the impact on women of African descent, who are highly over-represented in prison populations.[730]
The Special Rapporteur on violence against women has called on States to ensure that sentencing policies reflect an understanding of women’s levels of culpability and control with respect to drug offences and to review laws holding women responsible for association with people involved in drug activities, even where they have little or no knowledge of these activities. The Special Rapporteur has also recommended that gender-sensitive drug treatment programmes be provided in women’s prisons.[731] The UN Working Group on Arbitrary Detention has raised concern that poor and otherwise marginalised women, particularly mothers and housewives, often bear the brunt of harsh anti-drug legislation, facing incarceration for minor drug crimes while those responsible for more serious offences, if caught, can use their financial resources to evade punishment[732] and that women’s lack of access to legal representation and negative stereotypes about women charged with drug-related offenses may limit opportunities to seek plea bargains or reduced sentences.[733] The Working Group also has raised concern that some women incarcerated for drug-related offences have been coerced into drug-related activities by husbands or partners, or for drugs in their home that belong to their partners, and that pregnant woman convicted of drug-related offences cannot benefit from the alternatives to incarceration available to those convicted of other crimes.[734]
The UN Working Group on the Issue of Discrimination against Women in Law and in Practice has raised concern about the drastic rise in the number of women in prison globally and has noted that in some parts of the world, this increase can be attributed mainly to women being convicted of drug-related offences.[735] The Working Group has observed that proportionally, women are more likely than men to be incarcerated for drug-related crimes and that while they tend to be engaged at lower levels of the drug trade, they may receive harsher sentences than those responsible for more serious offences.[736] This disparity is due to the fact that they may have fewer opportunities to negotiate for lesser punishments, given their low status within criminal drug networks and because in some jurisdictions, the work that women do, such as transporting drugs, is subject to harsher punishment than offences committed by people at higher levels of these networks.[737] The Working Group also has raised concern about the disproportionate criminalisation of indigenous and racial minority women among the lower levels of drug networks.[738]
The Working Group on the Issue of Discrimination against Women in Law and in Practice has highlighted that violence is often used as a tool to coerce women to become drug couriers.[739] Women who are engaged in the drug trade or who use drugs may be reluctant to report such violence to law enforcement, for fear that doing so will subject them to further violence or discrimination.[740]
The Committee on the Elimination of Discrimination against Women recommends that States enhance economic opportunities for women at risk of involvement in drug trafficking and take measures to reduce the number of women in conflict with the law for drug-related reasons, including through programmes addressing the causes of criminality.[741] The UN General Assembly Special Session 2016 Outcome Document likewise recommends that States identify and address the conditions that make women vulnerable to exploitation and participation in drug trafficking, including as couriers.[742] Several countries have already enacted legislative and policy reforms to address the harmful consequences of drug control efforts on women, taking into account their age, economic status, caretaking responsibility, and pregnancy,[743] as well as the specific circumstances of poor, foreign women imprisoned as drug couriers.[744]
The Committee on the Elimination of Discrimination against Women and the Special Rapporteur on violence against women have called on States to develop gender-specific alternatives to incarceration, in line with the Bangkok Rules.[745] These rules encourage alternative measures and sanctions that take into account the accused’s history, the circumstances of the offence, and her care responsibilities, and they recommend the use of alternatives to incarceration for non-violent offences and the adoption of gender-specific measures to address the needs of women who use drugs.[746] They also recommend the earliest possible transfer of non-resident foreign-national women prisoners to their home country with their consent, especially if the women have children there, taking advantage of relevant bilateral or multilateral agreements.[747] The Mandela Rules provide further guidance on the treatment of women prisoners.[748]
The Commission on Narcotic Drugs has also encouraged UN Member States to take into account the specific needs and circumstances of women subject to arrest, detention, prosecution, and sentencing for drug-related offences when developing crime prevention and criminal justice measures, drawing on, as appropriate, the Bangkok Rules, the Mandela Rules, and the Tokyo Rules.[749] The UN General Assembly Special Session 2016 Outcome Document likewise encourages consideration of the specific needs and circumstances of women in prison for drug offences, in line with the Bangkok Rules and also referring to the Mandela Rules and Tokyo Rules.[750]
Committee on the Elimination of Discrimination against Women, Concluding Observations: Canada, UN Doc. CEDAW/C/CAN/CO/8-9 (2016), para. 44; Committee on the Elimination of Discrimination against Women, Concluding Observations: Brazil, UN Doc. CEDAW/C/BRA/CO/7 (2012), para. 32; Committee on the Elimination of Discrimination against Women, Concluding Observations: UK, UN Doc. A/54/38 (1999), para. 312.
Committee on the Elimination of Discrimination against Women, Concluding Observations: Chile, UN Doc. CEDAW/C/CHL/CO/7 (2018), para. 48.
Committee on the Elimination of Discrimination against Women, Concluding Observations: Chile, UN Doc. CEDAW/C/CHL/CO/7 (2018), para. 49.
Committee on the Elimination of Discrimination against Women, Concluding Observations: Brazil, UN Doc. CEDAW/C/BRA/CO/7 (2012), paras. 32–33; Committee on the Elimination of Discrimination against Women, Concluding Observations: Colombia, UN Doc. CEDAW/C/COL/CO/6 (2007), paras. 20–21.
Committee on the Elimination of Discrimination against Women, Concluding Observations: Chile, UN Doc. CEDAW/C/CHL/CO/7 (2018), para. 49.
Committee on Economic, Social and Cultural Rights, Concluding Observations: Ecuador, UN Doc. E/C.12/ECU/CO/4 (2019), para. 47.
Committee against Torture, Concluding Observations: Argentina, UN Doc. CAT/C/ARG/CO/5-6 (2017), para. 15.
Rashida Manjoo, Special Rapporteur on Violence against Women: Pathways to, Conditions and Consequences of Incarceration for Women, UN Doc. A/68/340 (2013), para. 23.
Report of the Special Rapporteur on Violence against Women, Rashida Manjoo: Mission to the United States of America, UN Doc. A/HRC/17/26/Add.5 (2011), para. 45.
Rashida Manjoo, Special Rapporteur on Violence against Women: Pathways to, Conditions and Consequences of Incarceration for Women, UN Doc. A/68/340 (2013), para. 26.
Report of the Special Rapporteur on Violence against Women, Rashida Manjoo: Mission to the United States of America, UN Doc. A/HRC/17/26/Add.5 (2011), para. 55; Rashida Manjoo, Special Rapporteur on Violence against Women: Pathways to, Conditions and Consequences of Incarceration for Women, UN Doc. A/68/340 (2013), para. 25.
Report of the Special Rapporteur on Minority Issues on Her Mission to Brazil, UN Doc. A/HRC/31/56/Add.1 (2016), para. 59.
Report of the Special Rapporteur on Violence against Women, Rashida Manjoo: Mission to the United States of America, UN Doc. A/HRC/17/26/Add.5 (2011), paras. 55, 115 (e, g).
Report of the Working Group on Arbitrary Detention: Visit to Nicaragua, UN Doc. A/HRC/4/40/Add.3 (2006), para. 86.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 59.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), paras. 45, 58; Report of the Working Group on the Issue of Discrimination against Women in Law and in Practice: Women Deprived of Liberty, UN Doc. A/HRC/41/33 (2019), para. 63.
United Nations, ‘Women’s Rights Must Be Central in Drug Policies, Say UN Experts at the Commission on Narcotics in Drugs’, 13 March 2019, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=24330&LangID=E.
Report of the Working Group on the Issue of Discrimination against Women in Law and in Practice: Women Deprived of Liberty, UN Doc. A/HRC/41/33 (2019), para. 32.
Report of the Working Group on the Issue of Discrimination against Women in Law and in Practice: Women Deprived of Liberty, UN Doc. A/HRC/41/33 (2019), para. 32.
Report of the Working Group on the Issue of Discrimination against Women in Law and in Practice: Women Deprived of Liberty, UN Doc. A/HRC/41/33 (2019), para. 62.
Report of the Working Group on the Issue of Discrimination against Women in Law and in Practice: Women Deprived of Liberty, UN Doc. A/HRC/41/33 (2019), para. 69.
Report of the Working Group on the Issue of Discrimination against Women in Law and in Practice: Women Deprived of Liberty, UN Doc. A/HRC/41/33 (2019), para. 68
Committee on the Elimination of Discrimination against Women, Concluding Observations: Brazil, UN Doc. CEDAW/C/BRA/CO/7 (2012), paras. 32–33; Committee on the Elimination of Discrimination against Women, Concluding Observations: Colombia, UN Doc. CEDAW/C/COL/CO/6 (2007), paras. 20–21.
UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), annex, para. 4(d).
See, e.g., Argentina, Criminal Procedure Code, art. 495; Paraguay, Criminal Procedure Code, art. 238; Paraguay, Penal Code, art. 43; Colombia, Criminal Procedures Code, art. 314; Venezuela, Organic Criminal Procedures Code; Costa Rica, Law 9161 (2013).
See UK Sentencing Council, ‘Drug Mules: Twelve Case Studies’, March 2011, https://www.sentencingcouncil.org.uk/wp-content/uploads/Drug_mules_bulletin.pdf; UK Sentencing Council, ‘Response to Consultation’, 2012, http://www.sentencingcouncil.org.uk/wp-content/uploads/Drug_Offences_Response-web2.pdf.
Committee on the Elimination of Discrimination against Women, General Recommendation No. 33: Women’s Access to Justice, UN Doc. CEDAW/C/GC/33 (2015), paras. 48, 51; Rashida Manjoo, Special Rapporteur on Violence against Women: Pathways to, Conditions and Consequences of Incarceration for Women, UN Doc. A/68/340 (2013), paras. 82–83; see also Committee on the Elimination of Discrimination against Women, Concluding Observations: Cambodia, UN Doc. CEDAW/C/KHM/CO/6 (2019), paras. 44–45.
UN General Assembly, Resolution 65/229: United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), UN Doc. A/RES/65/22 (2011), rules 14, 15, 24(2), 30, 41, 57, 58, 61, 62, 64.
UN General Assembly, Resolution 65/229: United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), UN Doc. A/RES/65/22 (2011), rule 53.
UN Commission on Crime Prevention and Criminal Justice, UN Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), UN Doc. E/CN.15/2015/L.6/Rev.1 (2015), rules 28, 89, 93, 94.
Commission on Narcotic Drugs, Resolution 59/5: Mainstreaming a Gender Perspective in Drug-Related Policies and Programmes (2016).
UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), para. 4(n).
Everyone has the inherent right to life. This right must be protected by law. No one shall be arbitrarily deprived of their life based on actual or perceived drug use or involvement in the illicit drug trade. Drug offences do not meet the internationally recognised threshold of ‘most serious crimes’ for which the death penalty – where it exists – may be imposed.
In accordance with this right, States shall:
i. Take immediate action to halt executions, commute death sentences, and abolish the death penalty for drug offences. States may not transform an offence from a non-capital one to a capital one nor expand penalties for existing offences to include the death penalty.
ii. Take measures to prevent both State-perpetrated and private violence, threats to life, and unnecessary or disproportionate use of potentially lethal force based on actual or perceived drug use or involvement in the illicit drug trade, and investigate, prosecute, and hold accountable those responsible for such acts.
iii. Avoid extraditing or otherwise forcibly returning or transferring a person to another State where that person risks being sentenced to the death penalty for drug offences, unless provided with credible and effective assurances that the death penalty will not be imposed.
iv. Avoid extraditing or otherwise forcibly returning or transferring a person to another State where there are substantial grounds to believe that, based on actual or perceived drug use or involvement in the illicit drug trade, the person risks arbitrary deprivation of their right to life, including by non-State actors over whom the receiving State has no or only partial control or whose acts the receiving State cannot prevent.
In addition, States should:
v. Take steps to ensure that they do not aid or assist in the imposition of the death penalty outside of their jurisdiction and that the supply of equipment, personnel, training, and funding for drug law enforcement activities by or in another State, mutual legal assistance between States, and joint operations with other States do not contribute, directly or indirectly, to the imposition of the death penalty.
vi. Take positive measures to increase the life expectancy of people who use drugs, including adequate steps to provide scientific, evidence-based information, facilities, goods, and services on drug use prevention, overdose prevention and response, and harm reduction, including to reduce such harms as overdose, HIV, viral hepatitis, and other infections and injuries sometimes associated with drug use.
The right to life is recognised in many international and regional treaties and instruments.[301] No derogation of the right to life is permitted, even during armed conflict or public emergencies that threaten the life of a nation.[302] The prohibition on the arbitrary deprivation of life is a rule of customary international law and a peremptory, or jus cogens, norm,[303] which means that the obligation to uphold it extends to all States, regardless of treaty ratification.
Arbitrary deprivation of life: Extrajudicial, summary, and arbitrary executions
The deprivation of life is, as a rule, arbitrary if it is inconsistent with international law or domestic law.[304] The Human Rights Committee has explained that a deprivation of life may still be arbitrary even if authorised by domestic law. The notion of ‘arbitrariness’ is not to be fully equated with ‘against the law’; rather, it must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability, and due process of law,[305] as well as elements of reasonableness, necessity, and proportionality.
The duty to protect the right to life ‘by law’ requires that States take all necessary measures to prevent arbitrary deprivations of life by law enforcement officials, including soldiers charged with law enforcement measures and those empowered or authorised by the State to use potentially lethal force.[306] These measures include enacting an adequate domestic legal framework for the use of force by State actors; procedures to ensure that law enforcement actions are planned to minimise the risk to human life; mandatory reporting, review, and investigation of lethal and other life-threatening incidents; and the supplying of ‘less-lethal’ means and adequate protective equipment to obviate the need to resort to lethal force.[307] Law enforcement officials should be trained and bound by relevant international standards, including the UN Code of Conduct for Law Enforcement Officials and the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.[308]
States are under an obligation to rigorously limit and strictly and effectively monitor the use of force by private individuals and entities empowered or authorised to use potentially lethal force. They are responsible for such individuals’ or entities’ failure to comply with obligations under the right to life and must ensure that victims of the arbitrary deprivation of life by such individuals or entities are granted an effective remedy.[309] States also have a responsibility to address ‘attitudes or conditions within society which encourage or facilitate’ violence or killings committed by non-State actors, including killings of members of minority groups and the social cleansing of ‘undesirables’.[310]
The Human Rights Committee, the Committee on Economic, Social and Cultural Rights, several Special Rapporteurs, and the High Commissioner for Human Rights have all expressed concern about extrajudicial executions by police and armed forces carried out in the course of drug law enforcement activities and about the impunity of perpetrators of such unlawful killings, calling for investigations and for perpetrators to be brought to justice.[311] In some countries, high-ranking government officials have ordered or indirectly encouraged police or the military to ‘shoot to kill’ to combat the trade and use of drugs, a concern that has been raised by the Committee on Economic, Social and Cultural Rights and the Special Rapporteur on extrajudicial, summary, or arbitrary executions.[312]
The use of potentially lethal force for law enforcement purposes is an extreme measure,[313] which should be resorted to only when strictly necessary in order to protect life or prevent serious injury from an imminent threat.[314] The intentional taking of life by any means is permissible only if it is strictly necessary in order to protect life from an imminent threat.[315] The primary purpose of the ‘protect life’ principle is to save life. Accordingly, lethal force may not be used intentionally merely to protect law and order or other similar interests, such as to disperse protests or safeguard property interests.[316] When armed forces participate in law enforcement efforts, including anti-drug operations, they should be trained and bound by international standards on the use of force, in particular the UN Code of Conduct for Law Enforcement Officials and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.[317] They must also be provided with all necessary instructions, training, and equipment to enable them to act with full respect for this legal framework.[318] The Inter-American Court of Human Rights has elaborated upon the obligations of States to restrict the use of armed forces for law enforcement purposes in the context of the ‘war on drugs’, affirming that the maintenance of public order and citizen security is a function reserved primarily for civilian police forces and further emphasising that security forces’ intervention should be exceptional, temporary, and restricted to what is strictly necessary in the circumstances of the case; subordinate and complementary to civil control; subject to human rights law and standards on the use of force and provided with the necessary training to act in full respect of such standards; and overseen by competent, independent, and technically capable civilian bodies.
The International Narcotics Control Board and the executive director of the UN Office on Drugs and Crime have also condemned the practice of extrajudicial executions as a violation of fundamental rights and a clear violation of the international drug conventions.[319] The International Narcotics Board has highlighted that the drug conventions, in line with international human rights law, require that suspected drug-related criminality be addressed through formal criminal justice responses, in accordance with the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and internationally recognised due process standards and has appealed to States to act in accordance with these international standards.[320]
The Minnesota Protocol on the Investigation of Potentially Unlawful Death provides additional guidance regarding international norms on the prevention and investigation of extra-legal, arbitrary, and summary executions.[321]
Extradition and other forcible return or transfer
The duty to respect and ensure the right to life requires States to refrain from extraditing, deporting, or otherwise transferring individuals to countries in which there are substantial grounds for believing that these persons risk being deprived of their life in violation of international guarantees of this right.[322]
All three UN drug control conventions include provisions on extradition.[323] They also include safeguard clauses specifying that the relevant obligations are subject to domestic and constitutional law[324] and permitting States to refuse to comply with extradition requests ‘where there are substantial grounds leading its judicial or other competent authorities to believe that compliance would facilitate the prosecution or punishment of any person on account of his race, religion, nationality or political opinions, or would cause prejudice for any of those reasons to any person affected by the request’.[325] Not only do international human rights treaties provide stronger human rights protection than this, but so too do many national laws, constitutions, and bilateral treaties. The drug control conventions explicitly state that extradition is subject to these obligations.[326]
In certain circumstances, diplomatic assurances provided by the requesting State can resolve issues relating to human rights considerations in the extradition process. However, such assurances may be relied upon only if they are a suitable means to eliminate the danger to the individual concerned and only if the requested State actually considers them reliable.[327] Diplomatic assurances should not be used to undermine the principle of non-refoulement.[328] With regard to the death penalty, assurances may be related to the formal legal process and therefore monitored. However, extradition to a country with a mandatory death penalty for the relevant offence raises questions about the reliability of any assurances, as there is a lack of judicial discretion in sentencing. Moreover, assurances where the State cannot control non-State actors, the military, or others from violating an individual’s right to life are similarly unreliable.[329]
The Special Rapporteur on extrajudicial, summary, or arbitrary executions recommends that States amend national laws on extradition and deportation to specifically prohibit the forced transfer of persons to States where there is a genuine risk that the death penalty may be imposed in violation of internationally recognised standards, unless adequate assurances are obtained.[330]
Protecting and promoting health to preserve life
The Human Rights Committee has explained that the ‘right to life is a right which should not be interpreted narrowly’ and that governments ‘should take appropriate measures to address the general conditions in society that may give rise to direct threats to life or prevent individuals from enjoying their right to life with dignity’, including ‘degradation of the environment, deprivation of land, territories and resources of indigenous peoples, extensive substance abuse [and] the prevalence of life threatening diseases, such as AIDS’.[331] Protecting the right to life requires measures to ensure access without delay to essential goods and services that may be essential to life, including health care.[332] This obligation thus interacts and is linked with obligations under the right to health, such as the provision in the International Covenant on Economic, Social and Cultural Rights directing governments to take steps ‘necessary for … the prevention, treatment and control of epidemic … diseases’, which include those that particularly affect people who use drugs, such as HIV and viral hepatitis. This also means that protecting the right to life requires measures to ensure access without delay to certain goods and services that may be essential to life, including health care.[333] This includes ensuring access to the full range of harm reduction services as outlined by the World Health Organization and to overdose prevention, in addition to removing barriers to such services, including law enforcement practices and criminalisation, in order to reduce rates of HIV and hepatitis infection.
For example, the International Narcotics Control Board has noted that the operation of supervised injection sites is consistent with the drug conventions, citing evidence that such facilities have proven effective in protecting the health and lives of marginalised people who use drugs, and public health more generally, without increasing drug use or drug trafficking.[334] The Board has emphasised that the ‘ultimate objective [of such sites] should be to reduce the adverse consequences of drug abuse without condoning or encouraging drug use and trafficking’.[335] To this end, the Board has called on States to ensure that these facilities ‘provide or refer patients to treatment, rehabilitation and social reintegration services … [which] must not be a substitute for demand reduction programs’.[336] The Supreme Court of Canada has ruled that the denial of an exemption to criminal prohibitions on drug possession in order to permit the operation of a supervised injection site without risk of criminal prosecution impermissibly violates the constitutional rights of people with drug dependence, namely their rights to life, liberty, and security of the person.[337]
Death penalty
Under international law, the death penalty, when used, is restricted to the ‘most serious crimes’,[338] which ‘appertain only to crimes of extreme gravity, involving intentional killing’.[339] Drug offences cannot serve as the basis for the death penalty,[340] and mandatory death sentences are prohibited.[341] States must review their criminal laws to ensure that the death penalty is not imposed for crimes not qualifying as ‘most serious crimes’. They should revoke death sentences issued, and resentence those convicted, for such crimes.[342]
The International Covenant on Civil and Political Rights also imposes an absolute prohibition on the death penalty for pregnant women. Both the International Covenant and the Convention on the Rights of the Child impose an absolute prohibition on the death penalty for offences committed by persons under 18 years of age.[343] The Human Rights Committee has further concluded that States must refrain from imposing the death penalty on people who face special barriers in defending themselves on an equal basis as others, such as people whose serious psychosocial and intellectual disabilities impede their effective defence.[344] The Committee recommends that States refrain from executing people who have a diminished ability to understand the reasons for their sentence and persons whose execution would be exceptionally cruel or would lead to exceptionally harsh results for their families (such as where the person in question has suffered serious human rights violations or is the parent of very young or dependent children).[345] In considering alternative sentencing, the Convention on the Rights of the Child also prohibits minors’ imprisonment without the possibility of release.[346]
In addition, States have a duty to take measures to ensure that the death penalty is never imposed in an unlawful or discriminatory manner. Where the death penalty is pursued or imposed disproportionately against religious, racial, or ethnic minorities; indigenous groups; foreign nationals; indigent persons; LGBTI persons; groups based on their political or other opinions; or any other ‘other status’ groups against which discrimination is prohibited (such as people who use drugs), this may constitute discriminatory application of the death penalty.[347] The General Assembly has urged States to ensure that the death penalty is not applied on the basis of discriminatory laws or as a result of discriminatory or arbitrary application of the law.[348]
The Human Rights Committee emphasises that States can never impose the death penalty for an offence for which such punishment was not provided by law at the time of the act’s commission, but notes that they should apply the abolition of the death penalty retroactively to people already charged with or convicted of a capital offence.[349] Moreover, ‘States parties to the [International Covenant on Civil and Political Rights] who have abolished the death penalty by amending their domestic laws, becoming parties to the Second Optional Protocol … or adopting another international instrument obligating them to abolish the death penalty are barred from reintroducing it’.[350] The Committee has also stated that serious procedural flaws, such as the failure to promptly inform detained foreign nationals of their right to consular notification pursuant to the Vienna Convention on Consular Relations and the failure to afford individuals about to be deported to a country in which their lives are claimed to be at real risk with the opportunity to avail themselves of available appeal procedures, may render the imposition of the death penalty in violation of the Covenant.[351]
States should also take steps to ensure that they do not aid or assist in the imposition of the death penalty outside of their jurisdiction and that the supply of equipment, personnel, training, and funding for drug law enforcement activities by or in another State, mutual legal assistance between States, and joint operations with other States in relation to drug control do not contribute, directly or indirectly, to the imposition of the death penalty. In this respect, the Special Rapporteur on extrajudicial, summary, or arbitrary executions has raised concern that international cooperation on criminal and other matters – such as the provision of mutual legal, material, financial, or technical assistance between States, State contributions to multilateral assistance programmes, and the transfer of persons from abolitionist to non-abolitionist States –may contribute to the imposition of the death penalty for drug offences or drug-related crimes, in violation of international law.[352] These forms of inter-State cooperation may also raise questions of complicity where they contribute to the imposition of the death penalty in violation of international standards or issues of non-compliance with the assisting State’s international legal commitments.[353] The Special Rapporteur calls on States to develop guidelines on the provision of financial and technical aid and mutual assistance, especially with regard to drug-related offences, to ensure that they do not support violations of the right to life.[354]
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 6; African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 4; American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 4; Arab Charter on Human Rights (2004), art. 5; [European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (1950), art. 2; ASEAN Human Rights Declaration, 21st ASEAN Summit, Phnom Penh, 18 November 2012, para. 11; see also Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), art. 3.
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 4; Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 2.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), paras. 2, 68; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christopher Heyns, UN Doc. A/67/275 (2012), para. 11.
Human Rights Committee, General Comment 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 12.
Human Rights Committee, Communication No. 1134/2002: Gorji-Dinka v. Cameroon, UN Doc. CCPR/C/83/D/1134/2002 (2005), para. 5.1; Human Rights Committee, Communication No. 305/1988: Van Alphen v. The Netherlands, UN Doc. CCPR/C/39/D/305/1988 (1990), para. 5.8.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), paras. 13, 15; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christopher Heyns, UN Doc. A/HRC/26/36 (2014), paras. 46–47; see also Office of the UN High Commissioner for Human Rights, Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016): The Revised United Nations Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions (2017).
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 13; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christopher Heyns, UN Doc. A/HRC/26/36 (2014), paras. 46–47; see also Office of the UN High Commissioner for Human Rights, Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016): The Revised United Nations Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions (2017).
Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990); UN General Assembly, Resolution 34/169: Code of Conduct for Law Enforcement Officials, UN Doc. A/RES/34/169 (1979); see Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 13; see also Office of the UN High Commissioner for Human Rights, Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016): The Revised United Nations Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions (2017), para. 34.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 15.
Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston, UN Doc. E/CN.4/2005/7 (2014), para. 71.
Human Rights Committee, Concluding Observations: Gambia, UN Doc. CCPR/C/GMB/CO/2 (2018), para. 25; Human Rights Committee, Concluding Observations: Thailand, UN Doc. CCPR/CO/84/THA (2005), para. 10; Committee on Economic, Social and Cultural Rights, Concluding Observations: Philippines, UN Doc. E/C.12/PHL/CO/5-6 (2016), paras. 53, 54; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns: Mission to Mexico, UN Doc. A/HRC/26/36/Add.1 (2014), para. 8; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Philip Alston UN Doc. A/HRC/11/2/Add.2 (2009), paras. 33, 53; United Nations, ‘UN Experts Urge Philippines to Stop Attacks and Killings in Anti-Drugs Campaign’, 23 November 2017, http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22434&LangID=E; United Nations, ‘Killings of Suspected “drug offenders” in Bangladesh Must Stop – UN Human Rights Chief’, 6 June 2018, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23178.
Committee on Economic, Social and Cultural Rights, Concluding Observations: Philippines, UN Doc. E/C.12/PHL/CO/5-6 (2016), para. 53; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston, UN Doc. E/CN.4/2006/53 (2016), paras. 44, 55; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston, UN Doc. A/HRC/26/36/Add.1 (2014), para. 8.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 12; UN General Assembly, Resolution 34/169: Code of Conduct for Law Enforcement Officials, UN Doc. A/RES/34/169 (1979), commentary to art. 3.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 12; Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990), para. 9.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 12; Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990), para. 9.
Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christopher Heyns, UN Doc. A/HRC/26/36 (2014), para. 72.
See Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990); UN General Assembly, Resolution 34/169: Code of Conduct for Law Enforcement Officials, UN Doc. A/RES/34/169 (1979).
UN General Assembly, Resolution 34/169: Code of Conduct for Law Enforcement Officials, UN Doc. A/RES/34/169 (1979), art. 1.
International Narcotics Control Board, Annual Report 2018 (2019), paras. 326–329, 578, 628, 856; UN Office on Drugs and Crime, ‘Statement by the UNODC Executive Director on the Situation in the Philippines’, 3 August 2016, https://www.unodc.org/unodc/en/press/releases/2016/August/statement-by-the-unodc-executive-director-on-the-situation-in-the-philippines.html; International Narcotics Control Board, ‘INCB Condemns Acts of Violence against Persons Suspected of Drug-Related Crime and Drug Use in the Philippines’, 18 August 2017, https://www.incb.org/incb/en/news/press-releases/2017/press_release_20170818.html.
International Narcotics Control Board, Annual Report 2018 (2019), paras. 326–329, 578, 628, 856.
Office of the UN High Commissioner for Human Rights, Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016): The Revised United Nations Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions (2017).
See, e.g., Human Rights Committee, Communication No. 470/1991: Kindler v. Canada, UN Doc. CCPR/C/48/D/470/1991 (1993), para. 13.1–13.2; see also Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions (1989), para. 5.
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 36(2)(b); Convention on Psychotropic Substances, 1019 UNTS 14956 (1971), art. 22(2); Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 6.
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 36(2)(a)(4); Convention on Psychotropic Substances, 1019 UNTS 14956 (1971), art. 22(2)(a)(iv), (b); Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 6(8, 10).
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 6(6).
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 36(2)(a)(4); Convention on Psychotropic Substances, 1019 UNTS 14956 (1971), art. 22(2)(a)(iv), (b); Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 6(8, 10).
See, e.g., European Court of Human Rights, Einhorn v. France, Application No. 71555/01, 19 July 2001; European Court of Human Rights, Salem v. Portugal, Application No. 26844/04, 9 May 2006; European Court of Human Rights, Babar Ahmad and Others v. United Kingdom, Application Nos. 24027/07, 11949/08, 36742/08, 24 September 2012; European Court of Human Rights, Rrapo v. Albania, Application No. 58555/10, 25 December 2012.
Committee against Torture, General Comment No. 4: The Implementation of Article 3 in the Context of Article 22, UN Doc. CAT/C/GC/4 (2018), para. 37; Committee against Torture, Concluding Observations: Argentina, UN Doc. CAT/C/ARG/CO/5-6 (2017), para. 33.
See, e.g., European Court of Human Rights, Chahal v. United Kingdom, Application No. 22414/93, 15 November 1996, para. 105.
Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc. A/70/304 (2015), para. 117.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), paras. 3, 26.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), paras. 3, 26.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), paras. 3, 26.
International Narcotics Control Board, Annual Report 2017 (2018), paras. 20(h), 481.
International Narcotics Control Board, Annual Report 2017 (2018), paras. 20(h), 481.
International Narcotics Control Board, Annual Report 2017 (2018), para. 840.
Canada (Attorney General) v. PHS Community Services Society [2011] 3 SCR 134 (Canada).
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 6(2).
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 35.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 35; Human Rights Committee, Concluding Observations: Viet Nam, UN Doc. CCPR/C/VNM/CO/3 (2019), para. 23; Human Rights Committee, Concluding Observations: Lao People’s Democratic Republic, UN Doc. CCPR/C/LAO/CO/1 (2018), para. 17; Human Rights Committee, Concluding Observations: Bahrain, UN Doc. CCPR/C/BHR/CO/1 (2018), para. 31; Human Rights Committee, Concluding Observations: Thailand, UN Doc. CCPR/CO/84/THA (2005), para. 14; Human Rights Committee, Concluding Observations: Sudan, UN Doc. CCPR/C/SDN/CO/5 (2018), para. 29; Human Rights Committee, Concluding Observations: Sudan, UN Doc. CCPR/C/SDN/CO/3 (2007), para. 19; Human Rights Committee, Concluding Observations: Kuwait, UN Doc. CCPR/C/KWT/CO/3 (2016), paras. 22(b), 23; Human Rights Committee, Concluding Observations: Pakistan, UN Doc. CCPR/C/PAK/CO/1 (2017), paras. 17, 18(a); Committee against Torture, Concluding Observations: Kuwait, UN Doc. CAT/C/KWT/CO/3 (2016), para. 26; Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 41; Question of the Death Penalty: Report of the Secretary-General, UN Doc. A/HRC/21/29 (2012), para. 24; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston, UN Doc. A/HRC/4/20 (2007), paras. 51, 52; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc. A/67/275 (2012), para. 122; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, UN Doc. A/HRC/10/44 (2009), para. 66; Question of the Death Penalty: Report of the Secretary-General, UN Doc. A/HRC/24/18 (2013), para. 78; Moratorium on the Use of the Death Penalty: Report of the Secretary-General, UN Doc. A/73/260 (2018); Report of the UN High Commissioner for Human Rights: Study on the Impact of the World Drug Problem on the Enjoyment of Human Rights, UN Doc. A/HRC/30/65 (2015), para. 63; Report of the High Commissioner for Human Rights on Implementation of the Joint Commitment to Effectively Addressing and Countering the World Drug Problem with Regard to Human Rights, UN Doc. A/HRC/39/39 (2018); International Narcotics Control Board, Report of the International Narcotics Control Board, 2017 (2018), para. 257.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 37; Human Rights Committee, Concluding Observations: Sudan, UN Doc. CCPR/C/SDN/CO/5 (2018), para. 29; Human Rights Committee, Communication No. 390/1990: Luboto v. Zambia, UN Doc. CCPR/C/55/D/390/1990/Rev.1 (1995), para. 7.2; Human Rights Committee Communication No. 1132/2002: Chisanga v. Zambia, UN Doc. CCPR/C/85/D/1132/2002 (2005), para. 7.4; Human Rights Committee, Communication No. 1421/2005: Larranaga v. Philippines, UN Doc. CCPR/C/87/D/1421/2005 (2006), para. 7.2; Human Rights Committee, Communication No. 1077/2002: Carpo v. Philippines, UN Doc. CCPR/C/77/D/1077/2002 (2002), para. 8.3.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 35.
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 6(5); Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 37(a).
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 49; Human Rights Committee, Concluding Observations: Japan, UN Doc. CCPR/C/JPN/CO/6 (2014), para. 13.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 49.
Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 37(a).
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 44; Human Rights Committee, Concluding Observations: United States, UN Doc. CCPR/C/USA/CO/4 (2014), para. 8.
UN General Assembly, Resolution 73/175: Moratorium on the Use of the Death Penalty, UN Doc. A/RES/73/175 (2019).
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 38.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 35.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 42.
Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc. A/67/275 (2012), paras. 79–81; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc. A/70/304 (2015), paras. 102–107.
Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc. A/67/275 (2012), para. 79.
Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc. A/67/275 (2012), paras. 128; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc. A/70/304 (2015), para. 107.
All persons deprived of their liberty must be treated with humanity and with respect for the inherent dignity of the person. This includes those held in prisons and other closed settings and places of detention for drug-related reasons. Such persons have the right to a standard of health care equivalent to that available to the general population.
In accordance with these rights, States should:
i. Adhere at all times to the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules).
ii. Adhere at all times to international standards relating to specific groups deprived of their liberty, including women (the Bangkok Rules) and children (the Beijing Rules).
iii. Ensure that all persons deprived of their liberty have access to voluntary and evidence-based health services, including harm reduction and drug treatment services, as well as essential medicines, including HIV and hepatitis C services, at a standard that is equivalent to that in the community.
iv. Organise such drug-related and other health care services in close parallel with general public health administration, taking into account the specific nature of individuals’ detention, and design services to ensure the continuity of harm reduction, drug treatment, and access to essential medicines through transitions of entering and exiting the detention facility, as well as transfer between institutions.
v. Ensure that drug-related and other health care services for these populations are provided by qualified medical personnel able to make independent, evidence-based decisions for their patients.
vi. Ensure the provision of training for health care professionals and other staff working in prisons and other closed settings and places of detention on drug treatment, harm reduction, and palliative care and pain management, as well as other medical conditions that require the use of controlled substances for medical purposes.
The act of depriving a person of liberty imposes specific and enhanced obligations on States. Both the right to life and the prohibition of torture and other forms of cruel, inhuman, or degrading treatment or punishment create obligations to refrain from inflicting harm on a detainee.[765] At the same time, States have ‘positive obligations’ to do everything reasonably possible to safeguard the lives and well-being of those being detained.[766]
The International Covenant on Civil and Political Rights imposes further positive obligations on the State to ensure minimum standards of treatment consistent with the humanity and inherent dignity of the person.[767] In the context of drug control, persons in pre-trial detention or imprisoned after conviction for drug-related offences should not be subjected to harsher treatment than other persons in detention or in places of imprisonment. This has particular relevance for the deprivation of liberty on the basis of drug offences and for the detention or imprisonment of persons who use drugs (regardless of their criminal charge or conviction), as well as for standards of health care available to such persons.
States have legal obligations to ensure that people deprived of their liberty have adequate access to good-quality health facilities, goods, services, and information equivalent to those available in the general community, which are necessary to meet State obligations under the right to health[768] and the prohibition on torture and ill-treatment.[769] This includes the obligation to provide access to voluntary, evidence-based drug treatment and harm reduction services,[770] including needle and syringe programmes and opioid substitution therapies,[771] and to provide people deprived of liberty naloxone during their detention and upon their release.[772] Guidance by the UN Office on Drugs and Crime, World Health Organization, United Nations Development Programme, Joint United Nations Programme on HIV/AIDS, International Labour Organization, and UN Population Fund also recommends that that naloxone be made available to people in prison, prison staff, and other people in prisons and other closed settings who might witness an opioid overdose and provided to people upon release from prison to prevent post-release overdose deaths.[773]
A number of UN human rights treaty bodies have raised concerns that the excessive use of incarceration and pre-trial detention as a drug control measure and disproportionate punishments for drug use and minor drug-related crimes have resulted in serious prison overcrowding, calling into question States’ compliance with their obligations to prevent torture and ill-treatment and to protect the right to health.[774] They urge States to consider the greater use of non-custodial measures in line with the Tokyo Rules[775] and recommend that States reconsider their penalisation of drug use as part of a health- and rights-based approach to drug use.[776] The UN Working Group on Arbitrary Detention has found that over-incarceration for drug-related offences contributes significantly to prison overcrowding, which can call into question a State’s compliance with guarantees that everyone in detention shall be treated with humanity and respect for their dignity.[777]
The Special Rapporteur on the right to health has recommended that States take measures to protect against the spread of COVID-19 in prisons and other detention centres, including by considering the early release of prisoners with drug dependence and other health vulnerabilities (such as HIV, hepatitis C, and tuberculosis) and those charged with minor and non-drug-related crimes, and to adequately plan for the health care of those released.[778] The Special Rapporteur has recommended that in the context of the COVID-19 emergency, wherever compulsory drug treatment centres operate, States ‘should take immediate measures to close such centres, release people detained in such centres, and replace such facilities with voluntary, evidence-based care and support in the community’.[779] The Special Rapporteur has further recommended that adequately funded, effective measures be put in place to ensure that those released from prisons and other detention settings have continuity of care, as well as access to adequate housing and health care in the community. Thirteen UN entities, recalling the 2012 joint statement on compulsory drug detention centres, have likewise called on States operating compulsory drug detention centres to close them permanently without delay and to implement voluntary, evidence- and rights-based health and social services in the community as part of efforts to curb the spread of COVID-19.[780]
The UN General Assembly Special Session 2016 Outcome Document promotes the provision of drug treatment and harm reduction services both in the community and in prisons, with a special emphasis on imprisoned women who use drugs.[781] Such services must include ‘gender-sensitive and evidence-based drug treatment services to reduce harmful effects for women who use drugs, including harm reduction programmes for women in detention’.[782] The denial, removal, or discontinuation of effective drug treatment and harm reduction services in prisons and other places of detention violates the right to health and may in some circumstances contribute to conditions that meet the threshold of cruel, inhuman, or degrading treatment or punishment.[783]
Technical guidance from the World Health Organization and UN Office on Drugs and Crime recommends that health personnel in prison have complete professional independence from prison authorities and preferably be employed by a health authority. Prison health services should be integrated into national health policies and systems and be fully independent of prison administrations, yet liaise effectively with them.[784] The Committee of Ministers of the Council of Europe has likewise concluded that national health authorities should be responsible for health care provision in prisons, which would facilitate the continuity of treatment and ‘enable prisoners and staff to benefit from wider developments in treatments, in professional standards and in training’.[785] A number of countries have already transferred responsibility of prison health care to public health services because of concern about the quality of care and the role of medical staff.[786]
The UN has adopted detailed norms for the fulfilment of the above obligations. Such norms include the Mandela Rules, the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, the Basic Principles for the Treatment of Prisoners, the Bangkok Rules, the Beijing Rules, the Riyadh Guidelines, the United Nations Rules for the Protection of Juveniles Deprived of Their Liberty, and the Guidelines for Action on Children in the Criminal Justice System.[787] These instruments are of general application and, for the most part, are not specifically tailored to the treatment of persons who may have drug-related issues during detention or imprisonment. However, both the Mandela Rules and the Bangkok Rules include guidance directly related to drug use, cited by the UN General Assembly Special Session 2016 Outcome Document.[788]
The Mandela Rules include three provisions of particular relevance. The first notes that the provision of health care for prisoners is a State responsibility and that people in prison should enjoy the same standard of health care as that available in the community, free of charge and without discrimination on grounds of their legal status.[789] The second states that ‘[h]ealth-care service should be organized in close relationship to the general public health administration and in a way that ensures continuity and care, including for HIV, tuberculosis and other infectious diseases, as well as for drug dependence’.[790] The third notes that ‘[a] physician or other qualified health care professional … shall see, talk with and examine every prisoner as soon as possible following their admission and thereafter as necessary’ and that ‘[p]articular attention should be paid to … withdrawal signs from the use of drugs … and undertaking all appropriate individualized measures or treatment’.[791]
The Bangkok Rules also include numerous relevant provisions. They establish that HIV/AIDS programmes and services in penal institutions ‘shall be responsive to the specific needs of women, including prevention of mother-to-child transmission’ and that ‘[i]n this context, prison authorities shall encourage and support the development of initiatives on HIV prevention, treatment and care, such as peer-based education’.[792] Furthermore, they establish that prison health services ‘shall provide or facilitate specialized treatment programmes designed for women substance abusers, taking into account prior victimization, the special needs of pregnant women and women with children, as well as their diverse cultural backgrounds’.[793] Similar to the Mandela Rules, the Bangkok Rules provide that for women prisoners and detainees, ‘[h]ealth-care service should be organized in close relationship to the general public health administration and in a way that ensures continuity and care, including for HIV, tuberculosis and other infectious diseases, as well as for drug dependence’.[794] Furthermore, ‘[a] physician or other qualified health care professional … shall see, talk with and examine every prisoner as soon as possible following her admission and thereafter as necessary’, and ‘[p]articular attention should be paid to … withdrawal signs from the use of drugs … and undertaking all appropriate individualized measures or treatment’.[795] Finally, ‘[t]he provision of gender-sensitive, trauma-informed, women-only substance abuse treatment programmes in the community and women’s access to such treatment shall be improved, for crime prevention as well for diversion and alternative sentencing’.[796]
Regarding the issue of staff attending to people deprived of liberty, the Mandela Rules instruct that all prison staff, prior to entering duty, be provided with training tailored to their general and specific duties and then also provided with ongoing in-service training that includes material on the rights and duties of prison staff in the exercise of their functions, such as respecting the human dignity of all prisoners and the prohibition of certain conduct, particularly torture and other cruel, inhuman, or degrading treatment or punishment.[797] Prison staff who work with certain categories of prisoners or who are assigned other specialised functions should receive training that has a corresponding human rights focus.[798] The Bangkok Rules further require that all staff assigned to work with women prisoners receive training relating to these prisoners’ gender-specific needs and human rights.[799]
UN human rights mechanisms have called attention to the multiple and extreme forms of violence faced by LGBTI persons, which is exacerbated when they are deprived of their liberty and subjected to serious violence and to abuse, including sexual assault and rape, by fellow inmates and staff.[800] Transgender people, especially transgender women, are often housed in prisons according to their sex assigned at birth, and exposed to a high risk of rape and other violence and ill-treatment.[801] The lack of training and polices aimed at understanding the needs of LGBTI people, recognising people’s self-identified gender, and carrying out proper risk assessments compounds these problems.[802] UN human rights mechanisms have recommended that States adopt legislative, administrative, and judicial measures to address and prevent violence against LGBTI people in prison, stressing the fundamental importance of the involvement of LGBTI people in the design, implementation, and evaluation of measures to prevent torture and ill-treatment against them.[803]
Guidance issued by the UN Office on Drugs and Crime, World Health Organization, United Nations Development Programme, Joint United Nations Programme on HIV/AIDS, International Labour Organization, and UN Population Fund recommends that the comprehensive package of HIV prevention, care, and treatment interventions, which includes needle and syringe programmes, overdose prevention and management, opioid substitution therapy, and other evidence-based medical treatment, be tailored to the specific needs of women and transgender people, including with respect to sexual and reproductive health and hormone therapy (according to national guidance), and equivalent to services in the community. The guidance also notes the need for initiatives to acknowledge and address sexual and other forms of violence faced by women, men who have sex with men, and transgender people in prison and highlights the importance of ensuring that representatives of different population groups in prison – including adolescents and young people, women, men, people who inject drugs, transgender people, and people living with HIV – enjoy meaningful participation in the planning, implementing, and monitoring of prison HIV, tuberculosis, and hepatitis programmes in order to develop effective strategies that are responsive to their respective realities.[804]
See, e.g., International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), arts. 6, 7.
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 10; American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 5; African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 5; Arab Charter on Human Rights (2004), art. 20(1); UN General Assembly, Resolution 45/111: Basic Principles for the Treatment of Prisoners, UN Doc. A/RES/45/111 (1990), principle 1; UN General Assembly, Resolution 43/173: Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, UN Doc. A/RES/43/173 (1988), principle 1; African Commission on Human and Peoples’ Rights, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2003), principle M(7); Inter-American Commission on Human Rights, Resolution 1/08: Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas (2008), principle 1; Council of Europe, European Prison Rules (2006), rules 1, 72.
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 10.
Committee on Economic, Social and Cultural Rights, Concluding Observations: Lithuania, UN Doc. E/C.12/LTU/CO/2 (2014), para. 21; Committee on Economic, Social and Cultural Rights, Concluding Observations: Mauritius, UN Doc. E/C.12/MUS/CO/4 (2010), para. 27; Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover, UN Doc. A/65/255 (2010), para. 60.
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/22/53 (2013), paras. 73–74; see also Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Report on the Follow-Up Visit to the Republic of Paraguay, UN Doc. CAT/OP/PRY/2 (2011) para. 109; Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Visit to Poland Undertaken from 9 to 18 July 2018, UN Doc. CAT/OP/POL/ROSP/1 (2020), para. 109; Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Visit to Ukraine, UN Doc. CAT/OP/UKR/3 (2017), para. 32.
Human Rights Committee, Concluding Observations: The Netherlands, UN Doc. CCPR/C/NLD/CO/5 (2019), para. 41(c); Committee against Torture, Concluding Observations: Russia, UN Doc. CAT/C/RUS/6 (2018), para. 21(c); Committee against Torture, Concluding Observations: Tajikistan, UN Doc. CAT/C/TJK/CO/3 (2018), para. 24(a); Committee on the Elimination of Racial Discrimination, Concluding Observations: Canada, UN Doc. CERD/C/CAN/CO/21-23 (2017), para. 16(e); Committee on the Elimination of Discrimination against Women, Concluding Observations: Canada, UN Doc. CEDAW/C/CAN/CO/8-9 (2016), para. 49(c); Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Report on the Follow-Up Visit to the Republic of Paraguay from 13 to 15 September 2010, UN Doc. CAT/OP/PRY/2 (2011), para. 167; Committee on Economic, Social and Cultural Rights, Concluding Observations: Poland, UN Doc. E/C.12/POL/CO/6 (2016), para. 54; Committee on Economic, Social and Cultural Rights, Concluding Observations: Sweden, UN Doc. E/C.12/SWE/CO/6 (2016), para. 42; Committee on Economic, Social and Cultural Rights, Concluding Observations: Lithuania, UN Doc. E/C.12/LTU/CO/2 (2014), para. 21; Committee on the Elimination of Discrimination against Women, Concluding Observations: Georgia, UN Doc. CEDAW/C/GEO/CO/4-5 (2014), para. 31(e); Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak: Mission to Kazakhstan, UN Doc. A/HRC/13/39/Add.3 (2009), para. 85(b); Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Nils Melzer: Mission to Ukraine, UN Doc. A/HRC/40/59/Add.3 (2019), para. 121(e, f); Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover: Mission to Azerbaijan, UN Doc. A/HRC/23/41/Add.1 (2013), para. 60(g); Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, UN Doc. A/HRC/10/44 (2009), para. 71.
See, e.g., Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Nils Melzer, UN Doc. A/HRC/40/59/Add.3 (2019), para. 121(f); Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Visit to Portugal, UN Doc. CAT/OP/PRT/1 (2019), paras. 102–103; Smith v. Aroostook Cty. and Gillen, No. 19-1340 (1st Cir. 2019); Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 126(j); see also European Court of Human Rights, Wenner v. Germany, Application No. 62303/1, 12 January 2016, para. 81.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 126(k).
UN Office on Drugs and Crime, World Health Organization, UN Development Programme, et al., HIV Prevention, Testing, Treatment, Care and Support in Prisons and Other Closed Settings: A Comprehensive Package of Interventions (2020).
Committee against Torture, Concluding Observations: Russia, UN Doc. CAT/C/RUS/6 (2018), paras. 21. 38(c); Committee against Torture, Concluding Observations: Philippines, UN Doc. CAT/C/PHL/CO/3 (2016), para. 13; Committee on Economic, Social and Cultural Rights, Concluding Observations: Mauritius, UN Doc. E/C.12/MUS/CO/5 (2019), para. 53(a); Committee on Economic, Social and Cultural Rights, Concluding Observations: Dominican Republic, UN Doc. E/C.12/DOM/CO/4 (2016), para. 62; Committee on the Elimination of Discrimination against Women, Concluding Observations: Canada, UN Doc. CEDAW/C/CAN/CO/8-9 (2016), para. 44; Human Rights Committee, Concluding Observations: Portugal, UN Doc. CCPR/C/PRT/CO/4 (2012), para. 11; Report of the High Commissioner for Human Rights on Implementation of the Joint Commitment to Effectively Addressing and Countering the World Drug Problem with Regard to Human Rights, UN Doc. A/HRC/39/39 (2018).
Committee against Torture, Concluding Observations: Philippines, UN Doc. CAT/C/PHL/CO/3 (2016), para. 14; Committee on Economic, Social and Cultural Rights, Concluding Observations: Dominican Republic, UN Doc. E/C.12/DOM/CO/4 (2016), para. 63; Committee on Economic, Social and Cultural Rights, Concluding Observations: Ecuador, UN Doc. E/C.12/ECU/CO/4 (2019), para. 48(b).
Committee on Economic, Social and Cultural Rights, Concluding Observations: Dominican Republic, UN Doc. E/C.12/DOM/CO/4 (2016), para. 63.
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 10; see Report of the Working Group on Arbitrary Detention: Visit to Mexico, UN Doc. E/CN.4/2003/8/Add.3 (2002), para. 44; Report of the Working Group on Arbitrary Detention: Visit to Nicaragua, UN Doc. A/HRC/4/40/Add.3 (2006), para. 64; Implementation of General Assembly Resolution 60/251 of 15 March 2006 Entitled ‘Human Rights Council’: Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/4/40 (2007), paras. 59–80.
United Nations, ‘Statement by the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health on the Protection of People Who Use Drugs during the COVID-19 Pandemic’, 16 April 2020, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25797.
United Nations, ‘Statement by the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health on the Protection of People Who Use Drugs during the COVID-19 Pandemic’, 16 April 2020, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25797#_edn3.
United Nations Development Programme, Office of the United Nations High Commissioner for Human Rights, World Health Organization, Joint United Nations Programme on HIV/AIDS, et al., Joint Statement: Compulsory Drug Detention and Rehabilitation Centres in Asia and the Pacific in the Context of COVID-19 (2020).
UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), paras. 1(k, o), 4(b, n).
Committee on the Elimination of Discrimination against Women, Concluding Observations: Georgia, UN Doc. CEDAW/C/GEO/CO/4-5 (2014), para. 31(e).
Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover, UN Doc. A/65/255 (2010), paras. 29, 55; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/22/53 (2013), paras. 73, 74; see also Committee against Torture, Concluding Observations: Cape Verde, UN Doc. CAT/C/CPV/CO/1 (2017), para. 25(e).
World Health Organization/Europe and UN Office on Drugs and Crime, Good Governance for Prison Health in the 21st Century: A Policy Brief on the Organization of Prison Health (2013).
World Health Organization/Europe and UN Office on Drugs and Crime, Good Governance for Prison Health in the 21st Century: A Policy Brief on the Organization of Prison Health (2013).
World Health Organization/Europe and UN Office on Drugs and Crime, Good Governance for Prison Health in the 21st Century: A Policy Brief on the Organization of Prison Health (2013).
UN Commission on Crime Prevention and Criminal Justice, UN Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), UN Doc. E/CN.15/2015/L.6/Rev.1 (2015); UN General Assembly, Resolution 65/229: United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), UN Doc. A/RES/65/22 (2011); UN General Assembly, Resolution 43/173: Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, UN Doc. A/RES/43/173 (1988); UN General Assembly, Resolution 45/111: Basic Principles for the Treatment of Prisoners, UN Doc. A/RES/45/111 (1990); UN General Assembly, Resolution 40/33: United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), UN Doc. A/RES/40/33 (1985); UN General Assembly, Resolution 45/112: United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), UN Doc. A/RES/45/112 (1990); UN General Assembly, Resolution 45/113: United Nations Rules for the Protection of Juveniles Deprived of Their Liberty, UN Doc. A/RES/45/113 (1990); Economic and Social Council, Guidelines for Action on Children in the Criminal Justice System, UN Doc. E/RES/1997/30 (1997).
UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), para. 4(m, n).
UN Commission on Crime Prevention and Criminal Justice, UN Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), UN Doc. E/CN.15/2015/L.6/Rev.1 (2015), rule 24(1).
UN Commission on Crime Prevention and Criminal Justice, UN Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), UN Doc. E/CN.15/2015/L.6/Rev.1 (2015), rule 24(2).
UN Commission on Crime Prevention and Criminal Justice, UN Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), UN Doc. E/CN.15/2015/L.6/Rev.1 (2015), rule 30.
UN General Assembly, Resolution 65/229: United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), UN Doc. A/RES/65/22 (2011), rule 14.
UN General Assembly, Resolution 65/229: United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), UN Doc. A/RES/65/22 (2011), rule 15.
UN General Assembly, Resolution 65/229: United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), UN Doc. A/RES/65/22 (2011), rule 24(2).
UN General Assembly, Resolution 65/229: United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), UN Doc. A/RES/65/22 (2011), rule 30.
UN General Assembly, Resolution 65/229: United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), UN Doc. A/RES/65/22 (2011), rule 62.
UN Commission on Crime Prevention and Criminal Justice, UN Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), UN Doc. E/CN.15/2015/L.6/Rev.1 (2015), rule 75(2).
UN Commission on Crime Prevention and Criminal Justice, UN Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), UN Doc. E/CN.15/2015/L.6/Rev.1 (2015), rule 76(2).
UN General Assembly, Resolution 65/229: United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), UN Doc. A/RES/65/22 (2011), rule 33(1).
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Sir Nigel Rodley, UN Doc. A/56/156 (2001), para. 23; Ninth Annual Report of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc. CAT/C/57/4 (2016), paras. 62–64; United Nations, ‘Targeted and Tortured: UN Experts Urge Greater Protection for LGBTI People in Detention’, 23 June 2016, https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=20165&LangID=E.
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Sir Nigel Rodley, UN Doc. A/56/156 (2001), para. 23; Ninth Annual Report of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc. CAT/C/57/4 (2016), para. 66; United Nations, ‘Targeted and Tortured: UN Experts Urge Greater Protection for LGBTI People in Detention’, 23 June 2016, https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=20165&LangID=E.
Ninth Annual Report of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc. CAT/C/57/4 (2016), para. 51; United Nations, ‘Targeted and Tortured: UN Experts Urge Greater Protection for LGBTI People in Detention’, 23 June 2016, https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=20165&LangID=E.
United Nations, ‘Targeted and Tortured: UN Experts Urge Greater Protection for LGBTI People in Detention’, 23 June 2016, https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=20165&LangID=E.
UN Office on Drugs and Crime, World Health Organization, UN Development Programme, et al., HIV Prevention, Testing, Treatment, Care and Support in Prisons and Other Closed Settings: A Comprehensive Package of Interventions (2020).
Everyone has the inherent right to life. This right must be protected by law. No one shall be arbitrarily deprived of their life based on actual or perceived drug use or involvement in the illicit drug trade. Drug offences do not meet the internationally recognised threshold of ‘most serious crimes’ for which the death penalty – where it exists – may be imposed.
In accordance with this right, States shall:
i. Take immediate action to halt executions, commute death sentences, and abolish the death penalty for drug offences. States may not transform an offence from a non-capital one to a capital one nor expand penalties for existing offences to include the death penalty.
ii. Take measures to prevent both State-perpetrated and private violence, threats to life, and unnecessary or disproportionate use of potentially lethal force based on actual or perceived drug use or involvement in the illicit drug trade, and investigate, prosecute, and hold accountable those responsible for such acts.
iii. Avoid extraditing or otherwise forcibly returning or transferring a person to another State where that person risks being sentenced to the death penalty for drug offences, unless provided with credible and effective assurances that the death penalty will not be imposed.
iv. Avoid extraditing or otherwise forcibly returning or transferring a person to another State where there are substantial grounds to believe that, based on actual or perceived drug use or involvement in the illicit drug trade, the person risks arbitrary deprivation of their right to life, including by non-State actors over whom the receiving State has no or only partial control or whose acts the receiving State cannot prevent.
In addition, States should:
v. Take steps to ensure that they do not aid or assist in the imposition of the death penalty outside of their jurisdiction and that the supply of equipment, personnel, training, and funding for drug law enforcement activities by or in another State, mutual legal assistance between States, and joint operations with other States do not contribute, directly or indirectly, to the imposition of the death penalty.
vi. Take positive measures to increase the life expectancy of people who use drugs, including adequate steps to provide scientific, evidence-based information, facilities, goods, and services on drug use prevention, overdose prevention and response, and harm reduction, including to reduce such harms as overdose, HIV, viral hepatitis, and other infections and injuries sometimes associated with drug use.
The right to life is recognised in many international and regional treaties and instruments.[301] No derogation of the right to life is permitted, even during armed conflict or public emergencies that threaten the life of a nation.[302] The prohibition on the arbitrary deprivation of life is a rule of customary international law and a peremptory, or jus cogens, norm,[303] which means that the obligation to uphold it extends to all States, regardless of treaty ratification.
Arbitrary deprivation of life: Extrajudicial, summary, and arbitrary executions
The deprivation of life is, as a rule, arbitrary if it is inconsistent with international law or domestic law.[304] The Human Rights Committee has explained that a deprivation of life may still be arbitrary even if authorised by domestic law. The notion of ‘arbitrariness’ is not to be fully equated with ‘against the law’; rather, it must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability, and due process of law,[305] as well as elements of reasonableness, necessity, and proportionality.
The duty to protect the right to life ‘by law’ requires that States take all necessary measures to prevent arbitrary deprivations of life by law enforcement officials, including soldiers charged with law enforcement measures and those empowered or authorised by the State to use potentially lethal force.[306] These measures include enacting an adequate domestic legal framework for the use of force by State actors; procedures to ensure that law enforcement actions are planned to minimise the risk to human life; mandatory reporting, review, and investigation of lethal and other life-threatening incidents; and the supplying of ‘less-lethal’ means and adequate protective equipment to obviate the need to resort to lethal force.[307] Law enforcement officials should be trained and bound by relevant international standards, including the UN Code of Conduct for Law Enforcement Officials and the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.[308]
States are under an obligation to rigorously limit and strictly and effectively monitor the use of force by private individuals and entities empowered or authorised to use potentially lethal force. They are responsible for such individuals’ or entities’ failure to comply with obligations under the right to life and must ensure that victims of the arbitrary deprivation of life by such individuals or entities are granted an effective remedy.[309] States also have a responsibility to address ‘attitudes or conditions within society which encourage or facilitate’ violence or killings committed by non-State actors, including killings of members of minority groups and the social cleansing of ‘undesirables’.[310]
The Human Rights Committee, the Committee on Economic, Social and Cultural Rights, several Special Rapporteurs, and the High Commissioner for Human Rights have all expressed concern about extrajudicial executions by police and armed forces carried out in the course of drug law enforcement activities and about the impunity of perpetrators of such unlawful killings, calling for investigations and for perpetrators to be brought to justice.[311] In some countries, high-ranking government officials have ordered or indirectly encouraged police or the military to ‘shoot to kill’ to combat the trade and use of drugs, a concern that has been raised by the Committee on Economic, Social and Cultural Rights and the Special Rapporteur on extrajudicial, summary, or arbitrary executions.[312]
The use of potentially lethal force for law enforcement purposes is an extreme measure,[313] which should be resorted to only when strictly necessary in order to protect life or prevent serious injury from an imminent threat.[314] The intentional taking of life by any means is permissible only if it is strictly necessary in order to protect life from an imminent threat.[315] The primary purpose of the ‘protect life’ principle is to save life. Accordingly, lethal force may not be used intentionally merely to protect law and order or other similar interests, such as to disperse protests or safeguard property interests.[316] When armed forces participate in law enforcement efforts, including anti-drug operations, they should be trained and bound by international standards on the use of force, in particular the UN Code of Conduct for Law Enforcement Officials and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.[317] They must also be provided with all necessary instructions, training, and equipment to enable them to act with full respect for this legal framework.[318] The Inter-American Court of Human Rights has elaborated upon the obligations of States to restrict the use of armed forces for law enforcement purposes in the context of the ‘war on drugs’, affirming that the maintenance of public order and citizen security is a function reserved primarily for civilian police forces and further emphasising that security forces’ intervention should be exceptional, temporary, and restricted to what is strictly necessary in the circumstances of the case; subordinate and complementary to civil control; subject to human rights law and standards on the use of force and provided with the necessary training to act in full respect of such standards; and overseen by competent, independent, and technically capable civilian bodies.
The International Narcotics Control Board and the executive director of the UN Office on Drugs and Crime have also condemned the practice of extrajudicial executions as a violation of fundamental rights and a clear violation of the international drug conventions.[319] The International Narcotics Board has highlighted that the drug conventions, in line with international human rights law, require that suspected drug-related criminality be addressed through formal criminal justice responses, in accordance with the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and internationally recognised due process standards and has appealed to States to act in accordance with these international standards.[320]
The Minnesota Protocol on the Investigation of Potentially Unlawful Death provides additional guidance regarding international norms on the prevention and investigation of extra-legal, arbitrary, and summary executions.[321]
Extradition and other forcible return or transfer
The duty to respect and ensure the right to life requires States to refrain from extraditing, deporting, or otherwise transferring individuals to countries in which there are substantial grounds for believing that these persons risk being deprived of their life in violation of international guarantees of this right.[322]
All three UN drug control conventions include provisions on extradition.[323] They also include safeguard clauses specifying that the relevant obligations are subject to domestic and constitutional law[324] and permitting States to refuse to comply with extradition requests ‘where there are substantial grounds leading its judicial or other competent authorities to believe that compliance would facilitate the prosecution or punishment of any person on account of his race, religion, nationality or political opinions, or would cause prejudice for any of those reasons to any person affected by the request’.[325] Not only do international human rights treaties provide stronger human rights protection than this, but so too do many national laws, constitutions, and bilateral treaties. The drug control conventions explicitly state that extradition is subject to these obligations.[326]
In certain circumstances, diplomatic assurances provided by the requesting State can resolve issues relating to human rights considerations in the extradition process. However, such assurances may be relied upon only if they are a suitable means to eliminate the danger to the individual concerned and only if the requested State actually considers them reliable.[327] Diplomatic assurances should not be used to undermine the principle of non-refoulement.[328] With regard to the death penalty, assurances may be related to the formal legal process and therefore monitored. However, extradition to a country with a mandatory death penalty for the relevant offence raises questions about the reliability of any assurances, as there is a lack of judicial discretion in sentencing. Moreover, assurances where the State cannot control non-State actors, the military, or others from violating an individual’s right to life are similarly unreliable.[329]
The Special Rapporteur on extrajudicial, summary, or arbitrary executions recommends that States amend national laws on extradition and deportation to specifically prohibit the forced transfer of persons to States where there is a genuine risk that the death penalty may be imposed in violation of internationally recognised standards, unless adequate assurances are obtained.[330]
Protecting and promoting health to preserve life
The Human Rights Committee has explained that the ‘right to life is a right which should not be interpreted narrowly’ and that governments ‘should take appropriate measures to address the general conditions in society that may give rise to direct threats to life or prevent individuals from enjoying their right to life with dignity’, including ‘degradation of the environment, deprivation of land, territories and resources of indigenous peoples, extensive substance abuse [and] the prevalence of life threatening diseases, such as AIDS’.[331] Protecting the right to life requires measures to ensure access without delay to essential goods and services that may be essential to life, including health care.[332] This obligation thus interacts and is linked with obligations under the right to health, such as the provision in the International Covenant on Economic, Social and Cultural Rights directing governments to take steps ‘necessary for … the prevention, treatment and control of epidemic … diseases’, which include those that particularly affect people who use drugs, such as HIV and viral hepatitis. This also means that protecting the right to life requires measures to ensure access without delay to certain goods and services that may be essential to life, including health care.[333] This includes ensuring access to the full range of harm reduction services as outlined by the World Health Organization and to overdose prevention, in addition to removing barriers to such services, including law enforcement practices and criminalisation, in order to reduce rates of HIV and hepatitis infection.
For example, the International Narcotics Control Board has noted that the operation of supervised injection sites is consistent with the drug conventions, citing evidence that such facilities have proven effective in protecting the health and lives of marginalised people who use drugs, and public health more generally, without increasing drug use or drug trafficking.[334] The Board has emphasised that the ‘ultimate objective [of such sites] should be to reduce the adverse consequences of drug abuse without condoning or encouraging drug use and trafficking’.[335] To this end, the Board has called on States to ensure that these facilities ‘provide or refer patients to treatment, rehabilitation and social reintegration services … [which] must not be a substitute for demand reduction programs’.[336] The Supreme Court of Canada has ruled that the denial of an exemption to criminal prohibitions on drug possession in order to permit the operation of a supervised injection site without risk of criminal prosecution impermissibly violates the constitutional rights of people with drug dependence, namely their rights to life, liberty, and security of the person.[337]
Death penalty
Under international law, the death penalty, when used, is restricted to the ‘most serious crimes’,[338] which ‘appertain only to crimes of extreme gravity, involving intentional killing’.[339] Drug offences cannot serve as the basis for the death penalty,[340] and mandatory death sentences are prohibited.[341] States must review their criminal laws to ensure that the death penalty is not imposed for crimes not qualifying as ‘most serious crimes’. They should revoke death sentences issued, and resentence those convicted, for such crimes.[342]
The International Covenant on Civil and Political Rights also imposes an absolute prohibition on the death penalty for pregnant women. Both the International Covenant and the Convention on the Rights of the Child impose an absolute prohibition on the death penalty for offences committed by persons under 18 years of age.[343] The Human Rights Committee has further concluded that States must refrain from imposing the death penalty on people who face special barriers in defending themselves on an equal basis as others, such as people whose serious psychosocial and intellectual disabilities impede their effective defence.[344] The Committee recommends that States refrain from executing people who have a diminished ability to understand the reasons for their sentence and persons whose execution would be exceptionally cruel or would lead to exceptionally harsh results for their families (such as where the person in question has suffered serious human rights violations or is the parent of very young or dependent children).[345] In considering alternative sentencing, the Convention on the Rights of the Child also prohibits minors’ imprisonment without the possibility of release.[346]
In addition, States have a duty to take measures to ensure that the death penalty is never imposed in an unlawful or discriminatory manner. Where the death penalty is pursued or imposed disproportionately against religious, racial, or ethnic minorities; indigenous groups; foreign nationals; indigent persons; LGBTI persons; groups based on their political or other opinions; or any other ‘other status’ groups against which discrimination is prohibited (such as people who use drugs), this may constitute discriminatory application of the death penalty.[347] The General Assembly has urged States to ensure that the death penalty is not applied on the basis of discriminatory laws or as a result of discriminatory or arbitrary application of the law.[348]
The Human Rights Committee emphasises that States can never impose the death penalty for an offence for which such punishment was not provided by law at the time of the act’s commission, but notes that they should apply the abolition of the death penalty retroactively to people already charged with or convicted of a capital offence.[349] Moreover, ‘States parties to the [International Covenant on Civil and Political Rights] who have abolished the death penalty by amending their domestic laws, becoming parties to the Second Optional Protocol … or adopting another international instrument obligating them to abolish the death penalty are barred from reintroducing it’.[350] The Committee has also stated that serious procedural flaws, such as the failure to promptly inform detained foreign nationals of their right to consular notification pursuant to the Vienna Convention on Consular Relations and the failure to afford individuals about to be deported to a country in which their lives are claimed to be at real risk with the opportunity to avail themselves of available appeal procedures, may render the imposition of the death penalty in violation of the Covenant.[351]
States should also take steps to ensure that they do not aid or assist in the imposition of the death penalty outside of their jurisdiction and that the supply of equipment, personnel, training, and funding for drug law enforcement activities by or in another State, mutual legal assistance between States, and joint operations with other States in relation to drug control do not contribute, directly or indirectly, to the imposition of the death penalty. In this respect, the Special Rapporteur on extrajudicial, summary, or arbitrary executions has raised concern that international cooperation on criminal and other matters – such as the provision of mutual legal, material, financial, or technical assistance between States, State contributions to multilateral assistance programmes, and the transfer of persons from abolitionist to non-abolitionist States –may contribute to the imposition of the death penalty for drug offences or drug-related crimes, in violation of international law.[352] These forms of inter-State cooperation may also raise questions of complicity where they contribute to the imposition of the death penalty in violation of international standards or issues of non-compliance with the assisting State’s international legal commitments.[353] The Special Rapporteur calls on States to develop guidelines on the provision of financial and technical aid and mutual assistance, especially with regard to drug-related offences, to ensure that they do not support violations of the right to life.[354]
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 6; African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 4; American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 4; Arab Charter on Human Rights (2004), art. 5; [European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (1950), art. 2; ASEAN Human Rights Declaration, 21st ASEAN Summit, Phnom Penh, 18 November 2012, para. 11; see also Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), art. 3.
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 4; Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 2.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), paras. 2, 68; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christopher Heyns, UN Doc. A/67/275 (2012), para. 11.
Human Rights Committee, General Comment 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 12.
Human Rights Committee, Communication No. 1134/2002: Gorji-Dinka v. Cameroon, UN Doc. CCPR/C/83/D/1134/2002 (2005), para. 5.1; Human Rights Committee, Communication No. 305/1988: Van Alphen v. The Netherlands, UN Doc. CCPR/C/39/D/305/1988 (1990), para. 5.8.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), paras. 13, 15; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christopher Heyns, UN Doc. A/HRC/26/36 (2014), paras. 46–47; see also Office of the UN High Commissioner for Human Rights, Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016): The Revised United Nations Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions (2017).
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 13; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christopher Heyns, UN Doc. A/HRC/26/36 (2014), paras. 46–47; see also Office of the UN High Commissioner for Human Rights, Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016): The Revised United Nations Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions (2017).
Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990); UN General Assembly, Resolution 34/169: Code of Conduct for Law Enforcement Officials, UN Doc. A/RES/34/169 (1979); see Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 13; see also Office of the UN High Commissioner for Human Rights, Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016): The Revised United Nations Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions (2017), para. 34.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 15.
Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston, UN Doc. E/CN.4/2005/7 (2014), para. 71.
Human Rights Committee, Concluding Observations: Gambia, UN Doc. CCPR/C/GMB/CO/2 (2018), para. 25; Human Rights Committee, Concluding Observations: Thailand, UN Doc. CCPR/CO/84/THA (2005), para. 10; Committee on Economic, Social and Cultural Rights, Concluding Observations: Philippines, UN Doc. E/C.12/PHL/CO/5-6 (2016), paras. 53, 54; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns: Mission to Mexico, UN Doc. A/HRC/26/36/Add.1 (2014), para. 8; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Philip Alston UN Doc. A/HRC/11/2/Add.2 (2009), paras. 33, 53; United Nations, ‘UN Experts Urge Philippines to Stop Attacks and Killings in Anti-Drugs Campaign’, 23 November 2017, http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22434&LangID=E; United Nations, ‘Killings of Suspected “drug offenders” in Bangladesh Must Stop – UN Human Rights Chief’, 6 June 2018, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23178.
Committee on Economic, Social and Cultural Rights, Concluding Observations: Philippines, UN Doc. E/C.12/PHL/CO/5-6 (2016), para. 53; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston, UN Doc. E/CN.4/2006/53 (2016), paras. 44, 55; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston, UN Doc. A/HRC/26/36/Add.1 (2014), para. 8.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 12; UN General Assembly, Resolution 34/169: Code of Conduct for Law Enforcement Officials, UN Doc. A/RES/34/169 (1979), commentary to art. 3.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 12; Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990), para. 9.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 12; Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990), para. 9.
Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christopher Heyns, UN Doc. A/HRC/26/36 (2014), para. 72.
See Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990); UN General Assembly, Resolution 34/169: Code of Conduct for Law Enforcement Officials, UN Doc. A/RES/34/169 (1979).
UN General Assembly, Resolution 34/169: Code of Conduct for Law Enforcement Officials, UN Doc. A/RES/34/169 (1979), art. 1.
International Narcotics Control Board, Annual Report 2018 (2019), paras. 326–329, 578, 628, 856; UN Office on Drugs and Crime, ‘Statement by the UNODC Executive Director on the Situation in the Philippines’, 3 August 2016, https://www.unodc.org/unodc/en/press/releases/2016/August/statement-by-the-unodc-executive-director-on-the-situation-in-the-philippines.html; International Narcotics Control Board, ‘INCB Condemns Acts of Violence against Persons Suspected of Drug-Related Crime and Drug Use in the Philippines’, 18 August 2017, https://www.incb.org/incb/en/news/press-releases/2017/press_release_20170818.html.
International Narcotics Control Board, Annual Report 2018 (2019), paras. 326–329, 578, 628, 856.
Office of the UN High Commissioner for Human Rights, Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016): The Revised United Nations Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions (2017).
See, e.g., Human Rights Committee, Communication No. 470/1991: Kindler v. Canada, UN Doc. CCPR/C/48/D/470/1991 (1993), para. 13.1–13.2; see also Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions (1989), para. 5.
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 36(2)(b); Convention on Psychotropic Substances, 1019 UNTS 14956 (1971), art. 22(2); Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 6.
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 36(2)(a)(4); Convention on Psychotropic Substances, 1019 UNTS 14956 (1971), art. 22(2)(a)(iv), (b); Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 6(8, 10).
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 6(6).
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 36(2)(a)(4); Convention on Psychotropic Substances, 1019 UNTS 14956 (1971), art. 22(2)(a)(iv), (b); Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 6(8, 10).
See, e.g., European Court of Human Rights, Einhorn v. France, Application No. 71555/01, 19 July 2001; European Court of Human Rights, Salem v. Portugal, Application No. 26844/04, 9 May 2006; European Court of Human Rights, Babar Ahmad and Others v. United Kingdom, Application Nos. 24027/07, 11949/08, 36742/08, 24 September 2012; European Court of Human Rights, Rrapo v. Albania, Application No. 58555/10, 25 December 2012.
Committee against Torture, General Comment No. 4: The Implementation of Article 3 in the Context of Article 22, UN Doc. CAT/C/GC/4 (2018), para. 37; Committee against Torture, Concluding Observations: Argentina, UN Doc. CAT/C/ARG/CO/5-6 (2017), para. 33.
See, e.g., European Court of Human Rights, Chahal v. United Kingdom, Application No. 22414/93, 15 November 1996, para. 105.
Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc. A/70/304 (2015), para. 117.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), paras. 3, 26.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), paras. 3, 26.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), paras. 3, 26.
International Narcotics Control Board, Annual Report 2017 (2018), paras. 20(h), 481.
International Narcotics Control Board, Annual Report 2017 (2018), paras. 20(h), 481.
International Narcotics Control Board, Annual Report 2017 (2018), para. 840.
Canada (Attorney General) v. PHS Community Services Society [2011] 3 SCR 134 (Canada).
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 6(2).
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 35.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 35; Human Rights Committee, Concluding Observations: Viet Nam, UN Doc. CCPR/C/VNM/CO/3 (2019), para. 23; Human Rights Committee, Concluding Observations: Lao People’s Democratic Republic, UN Doc. CCPR/C/LAO/CO/1 (2018), para. 17; Human Rights Committee, Concluding Observations: Bahrain, UN Doc. CCPR/C/BHR/CO/1 (2018), para. 31; Human Rights Committee, Concluding Observations: Thailand, UN Doc. CCPR/CO/84/THA (2005), para. 14; Human Rights Committee, Concluding Observations: Sudan, UN Doc. CCPR/C/SDN/CO/5 (2018), para. 29; Human Rights Committee, Concluding Observations: Sudan, UN Doc. CCPR/C/SDN/CO/3 (2007), para. 19; Human Rights Committee, Concluding Observations: Kuwait, UN Doc. CCPR/C/KWT/CO/3 (2016), paras. 22(b), 23; Human Rights Committee, Concluding Observations: Pakistan, UN Doc. CCPR/C/PAK/CO/1 (2017), paras. 17, 18(a); Committee against Torture, Concluding Observations: Kuwait, UN Doc. CAT/C/KWT/CO/3 (2016), para. 26; Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 41; Question of the Death Penalty: Report of the Secretary-General, UN Doc. A/HRC/21/29 (2012), para. 24; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston, UN Doc. A/HRC/4/20 (2007), paras. 51, 52; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc. A/67/275 (2012), para. 122; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, UN Doc. A/HRC/10/44 (2009), para. 66; Question of the Death Penalty: Report of the Secretary-General, UN Doc. A/HRC/24/18 (2013), para. 78; Moratorium on the Use of the Death Penalty: Report of the Secretary-General, UN Doc. A/73/260 (2018); Report of the UN High Commissioner for Human Rights: Study on the Impact of the World Drug Problem on the Enjoyment of Human Rights, UN Doc. A/HRC/30/65 (2015), para. 63; Report of the High Commissioner for Human Rights on Implementation of the Joint Commitment to Effectively Addressing and Countering the World Drug Problem with Regard to Human Rights, UN Doc. A/HRC/39/39 (2018); International Narcotics Control Board, Report of the International Narcotics Control Board, 2017 (2018), para. 257.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 37; Human Rights Committee, Concluding Observations: Sudan, UN Doc. CCPR/C/SDN/CO/5 (2018), para. 29; Human Rights Committee, Communication No. 390/1990: Luboto v. Zambia, UN Doc. CCPR/C/55/D/390/1990/Rev.1 (1995), para. 7.2; Human Rights Committee Communication No. 1132/2002: Chisanga v. Zambia, UN Doc. CCPR/C/85/D/1132/2002 (2005), para. 7.4; Human Rights Committee, Communication No. 1421/2005: Larranaga v. Philippines, UN Doc. CCPR/C/87/D/1421/2005 (2006), para. 7.2; Human Rights Committee, Communication No. 1077/2002: Carpo v. Philippines, UN Doc. CCPR/C/77/D/1077/2002 (2002), para. 8.3.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 35.
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 6(5); Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 37(a).
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 49; Human Rights Committee, Concluding Observations: Japan, UN Doc. CCPR/C/JPN/CO/6 (2014), para. 13.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 49.
Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 37(a).
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 44; Human Rights Committee, Concluding Observations: United States, UN Doc. CCPR/C/USA/CO/4 (2014), para. 8.
UN General Assembly, Resolution 73/175: Moratorium on the Use of the Death Penalty, UN Doc. A/RES/73/175 (2019).
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 38.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 35.
Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 42.
Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc. A/67/275 (2012), paras. 79–81; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc. A/70/304 (2015), paras. 102–107.
Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc. A/67/275 (2012), para. 79.
Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc. A/67/275 (2012), paras. 128; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc. A/70/304 (2015), para. 107.
Torture and other cruel, inhuman, or degrading treatment or punishment are absolutely prohibited, in all circumstances. This includes during the arrest, questioning, and detention of persons alleged to have committed drug-related crimes or otherwise implicated during an investigation. The withholding of drugs from those who need them for medical purposes, including for drug dependence treatment and pain relief, is considered a form of torture.
In accordance with this right, States shall:
i. Take effective legislative, administrative, judicial, and other measures to prohibit, prevent, and redress all acts of torture and ill-treatment in their jurisdiction and in all settings under their custody or control, including in the context of drug dependence treatment, whether administered in public or private facilities.
ii. Promptly investigate allegations of torture and cruel, inhuman, or degrading treatment or punishment by State agents, as well as acts that occur in their territory or under their jurisdiction (whether carried out by State or non-State actors), and prosecute and punish those responsible, including when victims are persons alleged to have committed drug-related offences or who are dependent on drugs.
iii. Avoid extraditing or otherwise forcibly returning or transferring individuals to another State where there are substantial grounds to believe that they are at risk of subjection to torture or cruel, inhuman, or degrading treatment or punishment, including by non-State actors over which the receiving State has no or only partial control or whose acts the receiving State cannot prevent, or because they risk expulsion to a third State where they may be in danger of subjection to torture or other prohibited ill-treatment.
iv. Abolish corporal punishment for drug offences where it is in place.
In addition, States should:
v. Ensure access to essential medicines, including for drug dependence, pain treatment, and palliative care.
vi. Ensure that access to health care for people who use or are dependent on drugs and are in places of detention is equivalent to that available in the community.
vii. Establish a national system to effectively monitor drug dependence treatment practices and to inspect drug dependence treatment centres, as well as places of detention, including migrant detention centres, police stations, and prisons.
The prohibition against torture and other cruel, inhuman, or degrading treatment or punishment is enshrined in numerous international and regional treaties and other instruments.[355] This prohibition is absolute and non-[356] The obligation to prohibit, prevent, and redress torture and ill-treatment extends to all acts by State and non-State actors[357] and to all contexts of custody and control, including prisons, hospitals, ‘and other institutions as well as contexts where the failure of the State to intervene encourages and enhances the danger of privately inflicted harm’.[358]
Policing practices
The Committee against Torture, the Human Rights Committee, the Working Group on Arbitrary Detention, and the Special Rapporteur on torture have found that the use of violence by law enforcement officials and the withholding of opioid substitution therapy or otherwise inducing withdrawal to coerce confessions or obtain information – for example, about other people who use drugs or to reveal dealers or suppliers – constitute ill-treatment and possibly torture.[359] The Committee against Torture has urged that States take ‘all measures necessary to effectively protect drug users deprived of liberty against the infliction of pain and suffering associated with withdrawal by police, including to extract confessions; ensure such confessions are not admitted by the courts; and provide drug users in detention with adequate access to necessary medical treatment’.[360]
The use of violence by law enforcement officials and of withdrawal to coerce confessions or obtain information also contravenes international standards for law enforcement, in particular the UN Code of Conduct for Law Enforcement Officials, which states that torture by law enforcement officials cannot be justified in any circumstance and instructs such officials to ensure the ‘full protection of persons in their custody’ and ‘take immediate action to secure medical attention whenever required’.[361] Other policing practices may infringe the right to freedom from cruel, inhuman, and degrading treatment. For example, the European Court of Human Rights has found that forcing regurgitation – which causes physical pain and mental suffering – to retrieve evidence of a drug offence that could have been obtained by less intrusive methods constitutes inhuman and degrading treatment.[362]
Pretrial detention
The Committee against Torture and the Special Rapporteur on torture have raised concerns about criminal laws on narcotics that provide that people arrested under such laws can be held for lengthy periods without being brought before a judge and without having access to legal counsel. They have found that such regimes leave the accused vulnerable to a high risk of torture and ill-treatment. They have thus recommended that such laws be amended and that States otherwise ensure judicial procedure guarantees as part of efforts to prevent torture.[363]
Prison and other closed settings
Abuse among prisoners, from subtle forms of harassment to intimidation and serious physical and sexual attacks, are common.[364] People who use drugs and other vulnerable populations might face heightened risk of violence by other detainees, especially where States have delegated detainees with the authority to maintain discipline.[365] The employment of detainees in such disciplinary capacity violates international standards.[366] Moreover, States have a positive obligation to exercise due diligence to prevent violence among those in their custody. Inter-prisoner violence may amount to torture or ill-treatment if States fail to act with due diligence to prevent it.[367]
Extradition and other forcible return or transfer
Prohibition of the extradition and other forcible return or transfer of an individual to a country where there are substantial grounds for believing that they may face torture or cruel, inhuman, or degrading treatment or punishment by State or non-State actors is enshrined in international and regional human rights instruments. For example, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment expressly provides that ‘[n]o State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture’.[368]
Limits on extradition and other forms of forcible transfer under the Convention against Torture also apply where there are substantial grounds for believing that the person in question would be in danger of subjection to torture or ill-treatment at the hands of non-State actors over whom the receiving State has no or only partial de facto control, whose acts the State is unable to prevent, or who otherwise operate with impunity in the receiving State.[369] The International Covenant on Civil and Political Rights[370] and regional human rights instruments likewise protect individuals from extradition and other forms of transfer in cases of torture and cruel, inhuman, or degrading treatment or punishment.[371] The Committee against Torture has raised specific concerns that a government expelling foreigners convicted of drug trafficking and banning them from the country for a period seriously risks violating the principle of non-refoulement.[372]
Health services and cruel, inhuman, or degrading treatment
UN human rights mechanisms have concluded that the denial, removal, or discontinuation of effective drug dependence treatment, such as opioid substitution therapy, including in custodial settings, may violate the prohibition against cruel, inhuman, or degrading treatment or punishment.[373] Government failure to ensure access to controlled medicines for pain relief may also constitute cruel, inhuman, or degrading treatment or punishment, where, for example, a person’s suffering is severe and meets the minimum level of severity under the prohibition against torture and ill-treatment; where the State is, or should be, aware of the person’s suffering, including when no appropriate treatment was offered; and where the State failed to take all reasonable steps to protect the person’s physical and mental integrity.[374] Withholding antiretroviral treatment from people living with HIV who use drugs – based on the assumption that they will not be able to adhere to said treatment – has been deemed cruel and inhuman treatment in light of the physical and psychological suffering it causes.[375]
In addition, States have an obligation to ensure that incarcerated individuals have access to the same level of health care available in the general community, including services related to drug use and drug dependence.[376] Failure to do so may amount to cruel, inhuman, or degrading treatment or punishment.[377]
Independent oversight of places of deprivation of liberty
The Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment defines ‘deprivation of liberty’ as ‘any form of detention or imprisonment or the placement of a person in a public or private custodial setting which that person is not permitted to leave at will by order of any judicial, administrative or other authority’.[378]
International norms on the treatment of people deprived of liberty require that regular inspections of places of deprivation of liberty be performed by the administration of the institution and a body independent of it. The Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment requires that States Parties ‘set up, designate or maintain at the domestic level one or several visiting bodies for the prevention of torture and other cruel, inhuman or degrading treatment or punishment’, called ‘national preventive mechanisms’,[379] and guarantee the functional independence and independence of the personnel of these mechanisms.[380] The Special Rapporteur on torture has recommended that States ‘ensure that all places of detention are subjected to effective oversight and inspection and unannounced visits by independent bodies established in conformity with the Optional Protocol to the Convention against Torture as well as by civil society monitors; and ensure the inclusion of women and lesbian, gay, bisexual and transgender persons and other minority representation on monitoring bodies’.[381] The Special Rapporteur has also recommended that States monitor places of detention in a gender-sensitive manner[382] and ‘set up operational protocols, codes of conduct, regulations and training modules for the ongoing monitoring and analysis of discrimination against women, girls, and lesbian, gay, bisexual and transgender persons with regard to access to all services and rehabilitation programmes in detention; and document, investigate, sanction and redress complaints of imbalance and direct or indirect discrimination in accessing services and complaint mechanisms’.[383]
The UN Standard Minimum Rules for the Treatment of Prisoners (also known as the Mandela Rules) and the UN Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (also known as the Bangkok Rules) also provide guidance on the conducting of such inspections,[384] specifying, among other things, that bodies tasked with monitoring, inspection, and supervision should include women members.[385]
Drug detention centres
In some countries, people who are suspected of drug use are held in compulsory drug detention centres, often without medical evaluation, judicial review, or right of appeal and undergo detention, physical disciplinary exercises (such as military-style drills), and forced labour as ‘treatment’, in plain disregard of medical evidence and in violation of international human rights protections, including against torture and ill-treatment. The Committee against Torture, the Committee on the Rights of the Child, the Committee on Economic, Social and Cultural Rights, the Human Rights Committee, the Special Rapporteurs on torture and on the right to health, and the Working Group on Arbitrary Detention have raised concerns about torture and ill-treatment in compulsory drug detention centres, calling for their immediate closure; an end to financial and technical support for such centres; prompt, thorough, impartial investigations of abuses; the prosecution of alleged perpetrators and, if found guilty, punishment commensurate with the seriousness of their acts; and adequate redress for victims.[386] In addition, the Committee on the Rights of the Child has urged the release, without delay, of children in drug detention centres and the establishment of an independent, child-sensitive mechanism to receive complaints against law enforcement officers and to provide victims with redress.[387]
The Human Rights Committee has raised concern about arbitrary arrest and detention without due process,[388] as well as compulsory detoxification, forced labour, inadequate medical care, and onerous work conditions in drug detention centres.[389] 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.[390]
In 2012, 12 UN entities called for the immediate closure of such facilities, as well as the immediate release of those detained.[391] In 2020, 13 UN entities, recalling the 2012 joint statement on compulsory drug detention centres, likewise called on States operating compulsory drug detention centres to close them permanently without delay and to implement voluntary, evidence- and rights-based health and social services in the community as part of efforts to curb the spread of COVID-19.[392] Moreover, the UN General Assembly Special Session 2016 Outcome Document places an emphasis on people’s ‘voluntary participation’ in treatment programmes and the need to ‘prevent any possible acts of cruel, inhuman or degrading treatment or punishment’ in drug treatment and rehabilitation facilities.[393]
Solitary confinement, judicial corporal punishment, and corporal punishment as ‘treatment’
The Committee against Torture has expressed concern about the use of solitary confinement in drug treatment centres ‘when persons undergoing treatment are not “reformed through education” or do not obey discipline’, among other grounds.[394] The Committee has also expressed concern about the extended use of administrative detention, such as measures of ‘compulsory isolation in drug treatment centres’. It has called for the abolition of all forms of administrative detention, ‘which confine individuals without due process and make them vulnerable to abuse’, and for the prioritisation of community-based or alternative social-care services for people with drug dependence.[395]
The Special Rapporteurs on health and on torture have raised concerns about State-sanctioned beatings, caning, or whipping,[396] as well as ‘flogging therapy’ [397]in the guise of ‘treatment’, at compulsory drug detention centres. The UN Working Group on Arbitrary Detention has received reports of the caning of prisoners found guilty of drug trafficking or drug possession.[398] The Human Rights Committee, the Committee against Torture, the Committee on Economic, Social and Cultural Rights, and the Committee on the Rights of the Child have called for the abolition of corporal punishment, whether imposed under criminal or administrative proceedings.[399] The Human Rights Committee has stated that corporal punishment constitutes ill-treatment or punishment contrary to article 7 of the Covenant, irrespective of the nature of the crime being punished or the permissibility of corporal punishment under domestic law.[400] The Committee has also recognised that the imposition of a sentence of corporal punishment violates prohibitions against torture and ill-treatment, regardless of whether the sentence is carried out.[401] The Special Rapporteur on torture has also concluded that ‘without exception’, corporal punishment amounts to cruel, inhuman, or degrading punishment or torture and is absolutely prohibited in international law.[402]
Private actors
The obligation to prohibit, prevent, and redress torture applies to acts by State and non-State actors alike[403] and to all contexts of custody and control, including prisons, hospitals, ‘and other institutions as well as contexts where the failure of the State to intervene encourages and enhances the danger of privately inflicted harm’.[404] The obligation therefore extends to private facilities.
The Committee against Torture has raised concern about poor conditions in private drug treatment centres and ill-treatment inflicted upon persons admitted to them. The Committee calls for the taking of all steps necessary to prevent and punish ill-treatment in such centres and for the prompt, thorough, and effective investigation of all complaints of ill-treatment in these centres, ensuring that the persons responsible are brought to trial and, if found guilty, receive penalties commensurate with the seriousness of their acts.[405]
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 7; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46 (1984), arts. 2, 16; [European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (1950), art. 3; American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 1; African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 5; Arab Charter on Human Rights (2004), art. 8; Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), art. 5.
Committee against Torture, General Comment No. 2: Implementation of Article 2 by States Parties, UN Doc. CAT/C/GC/2 (2008), paras. 1, 2; Committee against Torture, Concluding Observations: Australia, UN Doc. CAT/C/AUS/CO/3 (2008), para. 18; Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, UN Doc. E/CN.4/1985/4 (1984), para. 27.
Human Rights Committee, General Comment No. 20: Prohibition of Torture, UN Doc. HRI/GEN/1/Rev.1 (1994), para. 8; Committee against Torture, General Comment No. 2: Implementation of Article 2 by States Parties, UN Doc. CAT/C/GC/2 (2008), paras. 15, 17, 18; Committee against Torture, Communication No. 161/2000: Hajrizi Dzemajl et al. v. Yugoslavia, UN Doc. CAT/C/29/D/161/2000 (2002), paras. 8.12, 9.2; see also European Court of Human Rights, Z and Others v. United Kingdom, Application No. 29392/95, 10 May 2001, para. 73.
Committee against Torture, General Comment No. 2: Implementation of Article 2 by States Parties, UN Doc. CAT/C/GC/2 (2008), paras. 15, 17; European Court of Human Rights, Opuz v. Turkey, Application No. 3401/02, 9 June 2009, para. 159; see also Committee on the Elimination of Discrimination against Women, Communication No. 17/2008: Maria de Lourdes da Silva Pimentel v. Brazil, UN Doc. CEDAW/C/49/D/17/2008 (2011), para. 7.5.
Committee against Torture, Concluding Observations: Russia, UN Doc. CAT/C/RUS/6 (2018), para. 20; Human Rights Committee, Concluding Observations: Russian Federation, UN Doc. CCPR/RUS/CO/7 (2015), para. 16; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak: Addendum, Mission to Indonesia, UN Doc. A/HRC/7/3/Add.7 (2008), paras. 22, 64, 70–71, 80, 108–109, 127, 139, 140, 142; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/22/53 (2013), para. 73; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, Addendum: Mission to Uruguay, UN Doc. A/HRC/13/39/Add.2 (2009), para. 85; Interim report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc. A/68/295 (2013), para. 68; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, UN Doc. A/HRC/10/44 (2009), para. 57; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak: Addendum, Mission to Indonesia, UN Doc. A/HRC/7/3/Add.7 (2009), para. 22; Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), paras. 21–23.
Committee against Torture, Concluding Observations: Russia, UN Doc. CAT/C/RUS/6 (2018), para. 21.
UN General Assembly, Resolution 34/169: Code of Conduct for Law Enforcement Officials, UN Doc. A/RES/34/169 (1979), arts. 5, 6.
European Court of Human Rights, Jalloh v. Germany, Application No. 54810/00, 11 July 2006.
Committee against Torture, Concluding Observations: Mauritania, UN Doc. CAT/C/MRT/CO/2 (2018), paras. 8–9; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez: Mission to Mauritania, UN Doc. A/HRC/34/54/Add.1 (2017), paras. 75, 117.
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/68/295 (2013), para. 47.
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/68/295 (2013), para. 47.
UN Commission on Crime Prevention and Criminal Justice, UN Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), UN Doc. E/CN.15/2015/L.6/Rev.1 (2015), rule 40.
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/68/295 (2013), para. 48; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, UN Doc. A/HRC/13/39/Add.3 (2009), para. 28.
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46 (1984), art. 3; see also Committee against Torture, Committee against Torture, General Comment No. 4: The Implementation of Article 3 in the Context of Article 22 (2018), para. 9; Committee against Torture, General Comment No. 2: Implementation of Article 2 by States Parties, UN Doc. CAT/C/GC/2 (2008), paras. 3, 6, 19, 25.
Committee against Torture, General Comment No. 4: The Implementation of Article 3 in the Context of Article 22 (2018), para. 30.
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 7; Human Rights Committee, General Comment No. 20: Prohibition of Torture, UN Doc. HRI/GEN/1/Rev.1 (1994), para. 9; Human Rights Committee, Communication No. 470/1991: Kindler v. Canada, UN Doc. CCPR/C/48/D/470/1991 (1993); Human Rights Committee, Communication No. 469/1991: Chitat Ng v. Canada, UN Doc. CCPR/C/49/D/469/1991 (1994); Human Rights Committee, Communication No. 539/1993: Cox v. Canada, UN Doc. CCPR/C/52/D/539/1993 (1994).
[European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (1950), art. 3; African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 5; Inter-American Convention to Prevent and Punish Torture, O.A.S. Treaty Series No. 67 (1987), art. 2; see also 1951 Convention relating to the Status of Refugees, 189 UNTS 137 (1951), art. 33; Organization for African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa (1969), arts. 1(1, 2), 2(3). From the jurisprudence of the European Court of Human Rights, see, e.g., European Court of Human Rights, Soering v. United Kingdom, Application No. 14038/88, 7 July 1989; European Court of Human Rights, Cruz Varas v. Sweden, Application No. 15576/89, 20 March 1991; European Court of Human Rights, Vilvarajah and Others v. United Kingdom, Application Nos. 13163/87, 13164/87, 13165/87, 13447/87, 13448/87, 30 October 1991.
Committee against Torture, Concluding Observations: Switzerland, UN Doc. CAT/C/CHE/CO/6 (2010), para. 11.
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, UN Doc. A/HRC/10/44 (2009), paras. 57, 74(e); Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/22/53 (2013); see also European Court of Human Rights, Bensaid v. the United Kingdom, Application No. 44599/98, 6 May 2001, para. 37.
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, UN Doc. A/HRC/10/44 (2009), para. 72; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/22/53 (2013), paras. 54, 56.
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/22/53 (2013), para. 73; see also Committee against Torture, Communication No. 672/2015: D.C. and D.E v. Georgia, UN Doc. CAT/C/62/D/672/2015 (2017).
Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover, UN Doc. A/65/255 (2010), para. 60.
Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc. A/68/295 (2013), paras. 26, 54.
Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 2375 UNTS 237 (2002), art. 4(1).
Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 2375 UNTS 237 (2002), art. 4(2).
Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 2375 UNTS 237 (2002), art. 18(1).
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/31/57 (2016), para. 20(y).
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/31/57 (2016), para. 20(x).
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/31/57 (2016), para. 20(w).
UN Commission on Crime Prevention and Criminal Justice, UN Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), UN Doc. E/CN.15/2015/L.6/Rev.1 (2015), rules 83–85.
UN General Assembly, Resolution 65/229: United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), UN Doc. A/RES/65/22 (2011), rule 25(3).
See, e.g., Committee against Torture, Concluding Observations: Belarus, UN Doc. CAT/C/BLR/5 (2018), paras. 23–24; Committee against Torture, Concluding Observations: Guatemala, UN Doc. CAT/C/GTM/CO/5-6 (2013), paras. 20–21; Committee against Torture, Concluding Observations: Guatemala, UN Doc. CAT/C/GTM/CO/7 (2018), paras. 30–31; Committee against Torture, Concluding Observations: Turkmenistan, UN Doc. CAT//C/TKM/CO/2(2017), para. 8(d); Committee against Torture, Concluding Observations: China, UN Doc. CAT/C/CHN/CO/5 (2016), paras. 26, 42–43; Human Rights Committee, Concluding Observations: Cambodia, UN Doc. CCPR/C/KHM/CO/2 (2015), para. 16; Committee on the Rights of the Child, Concluding Observations: Cambodia, UN Doc. CRC/C/KHM/CO/2-3 (2011), paras. 38–39; Committee on Economic, Social and Cultural Rights, Concluding Observations: Belarus, UN Doc. E/C.12/BLR/CO/4-6 (2013), para. 15; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/22/53 (2013), paras. 42, 87(a); Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover, UN Doc. A/65/255 (2010), paras. 30–39; Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health: Mission to Viet Nam, UN Doc. A/HRC/20/15/Add.2 (2012), para. 64(a); Report of the Working Group on Arbitrary Detention, UN Doc. A/HRCC/47/40 (2021), paras. 86, 126 (e, f); United Nations, ‘Statement by the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health on the Protection of People Who Use Drugs during the COVID-19 Pandemic’, 16 April 2020, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25797.
Committee on the Rights of the Child, Concluding Observations: Cambodia, UN Doc. CRC/C/KHM/CO/2-3 (2011), para. 39.
Human Rights Committee, Concluding Observations: Lao People’s Democratic Republic, UN Doc. CCPR/C/LAO/CO/1 (2019), para. 37.
Human Rights Committee, Concluding Observations: Viet Nam, UN Doc. CCPR/C/VNM/CO/3 (2019), para. 31.
Human Rights Committee, Concluding Observations: Viet Nam, UN Doc. CCPR/C/VNM/CO/3 (2019), para. 32.
United Nations Office on Drugs and Crime, World Health Organization, Joint United Nations Programme on HIV/AIDS, et al., Joint Statement on COVID-19 in Prisons and Other Closed Settings, https://www.unodc.org/documents/Advocacy-Section/20200513_PS_covid-prisons_en.pdf; International Labour Organization, Office of the UN High Commissioner for Human Rights, UN Development Programme, et al., Joint Statement on Compulsory Drug Detention and Rehabilitation Centres (2012); see also Global Commission on HIV and the Law, Risks, Rights and Health (2012), rec. 3.1.1.
United Nations Development Programme, Office of the United Nations High Commissioner for Human Rights, World Health Organization, Joint United Nations Programme on HIV/AIDS, et al., Joint Statement: Compulsory Drug Detention and Rehabilitation Centres in Asia and the Pacific in the Context of COVID-19 (2020).
UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), paras. 1(j), 4(c).
Committee against Torture, Concluding Observations: China, UN Doc. CAT /C/CHN/CO/5 (2016), para. 26.
Committee against Torture, Concluding Observations: China, UN Doc. CAT /C/CHN/CO/5 (2016), paras. 42, 43(b, c).
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/22/53 (2013), para. 41.
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/22/53 (2013), para. 41; Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover, UN Doc. A/65/255 (2010), para. 35.
Report of the Working Group on Arbitrary Detention: Visit to Malyasia, UN Doc. A/HRC/16/47/Add.2 (2011), para. 55.
Committee against Torture, Concluding Observations: Qatar, UN Doc. CAT/C/QAT/CO/3 (2018), paras. 31–32; Human Rights Committee, Concluding Observations: Iran, UN Doc. CCPR/C/IRN/CO/3 (2011), para. 16; Human Rights Committee, Concluding Observations: Barbados, UN Doc. CCPR/C/BRB/CO/3 (2007), para. 12; Committee on Economic, Social and Cultural Rights, Concluding Observations: Rwanda, UN Doc. E/C.12/RWA/CO/2-4 (2013), para. 21; Committee on the Rights of the Child, Concluding Observations: Qatar, UN Doc. CRC/C/QAT/CO/3-4 (2017), paras. 21–22.
Human Rights Committee, Communication No. 792/1998: Higginson v. Jamaica, UN Doc. CCPR/C/74/D/792/1998 (2002) para. 4.6; Human Rights Committee, Communication No. 928/2000: Sooklal v. Trinidad and Tobago, UN Doc. CCPR/C/73/D/928/2000 (2001) para. 4.6; Human Rights Committee, Communication No. 793/1998: Errol Pryce v. Jamaica, UN Doc. CCPR/C/80/D/793/1998 (2004) para. 6.2.
Human Rights Committee, Communication No. 792/1998: Higginson v. Jamaica, UN Doc. CCPR/C/74/D/792/1998 (2002), para. 4.6.
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, UN Doc. A/HRC/13/39 (2010), para. 63.
Human Rights Committee, General Comment No. 20: Prohibition of Torture, UN Doc. HRI/GEN/1/Rev.1 (1994), para. 8; Committee against Torture, General Comment No. 2: Implementation of Article 2 by States Parties, UN Doc. CAT/C/GC/2 (2008), paras. 15, 17, 18; Committee against Torture, Communication No. 161/2000: Hajrizi Dzemajl et al. v. Yugoslavia, UN Doc. CAT/C/29/D/161/2000 (2002), para. 8.12; Committee against Torture, Communication No. 161/2000: Hajrizi Dzemajl et al. v. Yugoslavia, UN Doc. CAT/C/29/D/161/2000 (2002), para. 9.2; see also European Court of Human Rights, Z and Others v. United Kingdom, Application No. 29392/95, 10 May 2001, para. 73.
Committee against Torture, General Comment No. 2: Implementation of Article 2 by States Parties, UN Doc. CAT/C/GC/2 (2008), paras. 15, 17; see also European Court of Human Rights, Opuz v. Turkey, Application No. 3401/02, 9 June 2009, para. 159; see also Committee on the Elimination of Discrimination against Women, Communication No. 17/2008: Maria de Lourdes da Silva Pimentel v. Brazil, UN Doc. CEDAW/C/49/D/17/2008 (2011), para. 7.5 (observing that ‘the State is directly responsible for the action of private institutions when it outsources its medical services’ and ‘always maintains the duty to regulate and monitor private health-care institutions’).
Committee against Torture, Concluding Observations: Guatemala, UN Doc. CAT/C/GTM/CO/5-6 (2013), para. 20.
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]
Extradition
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.
Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), arts. 10, 11; International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 14; [European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (1950), art. 6; American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 8; African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 7; Arab Charter on Human Rights (2004), art. 13; see generally Human Rights Committee, General Comment No. 32: Right to Equality before Courts and Tribunals and to a Fair Trial, UN Doc. CCPR/C/GC/32 (2007).
UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), para. 4(o).
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 14(3)(d); [European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (1950), art. 6(3)(c); American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 8(2)(d); Arab Charter on Human Rights (2004), art. 16(4); African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 7(c); see also African Commission on Human and Peoples’ Rights, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2003), sec. A, para. 2(f), secs. G–J.
UN General Assembly, Resolution 67/187: United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, UN Doc. A/RES/67/187 (2012), annex, para. 20; see also [European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (1950), art. 6(3); American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 8(2)(d); African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 7(c); Arab Charter on Human Rights (2004), art. 13.
UN General Assembly, Resolution 67/187: United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, UN Doc. A/RES/67/187 (2012), annex, paras. 20, 32.
Human Rights Committee, General Comment No. 32: Right to Equality before Courts and Tribunals and to a Fair Trial, UN Doc. CCPR/C/GC/32 (2007), para. 38.
Human Rights Committee, General Comment No. 32: Right to Equality before Courts and Tribunals and to a Fair Trial, UN Doc. CCPR/C/GC/32 (2007), para. 38.
Human Rights Committee, General Comment No. 32: Right to Equality before Courts and Tribunals and to a Fair Trial, UN Doc. CCPR/C/GC/32 (2007), para. 10.
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, UN Doc. A/HRC/13/39/Add.5 (2010), paras. 104, 106.
UN General Assembly, Resolution 67/187: United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, UN Doc. A/RES/67/187 (2012), annex, paras. 20, 32.
See International Court of Justice, Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America), Judgement of 31 March 2004.
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 14(2); [European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (1950), art. 6(2); American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 8(2); Arab Charter on Human Rights (2004), art. 16; African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 7(1)(b).
R v. Oakes [1986] 1 SCR 103 (Canada); S v. Bhulwana, S v. Gwadiso [1995] ZACC 11 (South Africa); R v. Lambert [2001] UKHL 37 (United Kingdom); HKSAR v. Hung Chan Wa [2006] HKCFA 85 (Hong Kong SAR); Hansen v. R [2007] NZSC 7 (New Zealand); R v. Momcilovic [2010] VSCA 50 (Australia).
Human Rights Committee, Concluding Observations: Georgia, UN Doc. CCPR/C/GEO/CO/4 (2014), para. 15.
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 14(3)(g); American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 8(2)(g); Arab Charter on Human Rights (2004), art. 16(6); see also European Court of Human Rights, Guide on Article 6 of the European Convention on Human Rights: Right to Fair Trial (Criminal Limb) (2019), sec. II; African Commission on Human and Peoples’ Rights, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2003), sec. M, para. 7(d), sec. N, para. 6(d), sec. O, para. n(6).
Human Rights Committee, General Comment No. 32: Right to Equality before Courts and Tribunals and to a Fair Trial, UN Doc. CCPR/C/GC/32 (2007), para. 41; see also Human Rights Committee, Concluding Observations: Nepal, UN Doc. CCPR/C/NPL/CO/2 (2007), para. 16; Human Rights Committee, Concluding Observations: France, UN Doc. CCPR/C/FRA/CO/4 (2008), para. 14.
UN General Assembly, Resolution 67/187: United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, UN Doc. A/RES/67/187 (2012), annex, para. 43(a).
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), paras. 33–34; see, e.g., the Special Criminal Court in the Republic of Ireland, a juryless court with restricted rules of evidence with a remit to try organised crime and drugs cases. Irish Council for Civil Liberties, ‘Special Criminal Court Decision “Flouts Rule of Law” says ICCL’, 29 October 2015, https://www.iccl.ie/press-release/special-criminal-court-decision-flouts-rule-of-law-says-iccl/#:~:text=Ireland's%20independent%20human%20rights%20watchdog,peacetime%20is%20a%20violation%20of; see also the Revolutionary Courts in Iran, which try drug trafficking cases and even issue death sentences. Iran Human Rights and Together against the Death Penalty, Annual Report on the Death Penalty in Iran, 2017 (2018), pp. 5, 12.
See Human Rights Committee, Communication No. 1172:/2003: Madani v. Algeria, UN Doc. CCPR/C/89/D/1172/2003 (2007), para. 8.7; Human Rights Committee, Concluding Observations: Chile, UN Doc. CCPR/C/CHL/CO/5 (2007), para. 12; Human Rights Committee, Concluding Observations: Tajikistan, UN Doc. CCPR/CO/84/TJK (2005), para. 18; Human Rights Committee, Concluding Observations: Ecuador, UN Doc. CCPR/C/ECU/CO/5 (2009), para. 5; Committee on the Rights of the Child, Concluding Observations: Colombia, UN Doc. CRC/C/COL/CO/3 (2006), para. 44; Report of the Special Rapporteur on the Independence of Judges and Lawyers, Gabriela Knaul, UN Doc. A/68/285 (2013), paras. 101–102; Report of the Special Rapporteur on the Independence of Judges and Lawyers, Leandro Despouy, UN Doc. A/61/384 (2006), paras. 22–25; Report of the Working Group on Arbitrary Detention, UN Doc. E/CN.4/2004/3 (2003), para. 67; see also Working Group on Arbitrary Detention: Opinion No. 27/2008 (Egypt), UN Doc. A/HRC/13/30/Add.1 (2010), para. 40.
Human Rights Committee, General Comment No. 32: Right to Equality before Courts and Tribunals and to a Fair Trial, UN Doc. CCPR/C/GC/32 (2007), para. 22.
Human Rights Committee, General Comment No. 32: Right to Equality before Courts and Tribunals and to a Fair Trial, UN Doc. CCPR/C/GC/32 (2007), para. 22.
Report of the Special Rapporteur on the Independence of Judges and Lawyers, Gabriela Knaul, UN Doc. A/68/285 (2013), paras. 101–102.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 126(i).
Human Rights Committee, Concluding Observations: Rwanda, UN Doc. CCPR/C/RWA/CO/4 (2016), paras. 33, 34; Human Rights Committee, Concluding Observations: Kyrgyzstan, UN Doc. CCPR/C/KGZ/CO/2 (2014), para. 20; Human Rights Committee, Concluding Observations: Bolivia, UN Doc. CCPR/C/BOL/CO/3 (2013), paras. 12–13; Committee against Torture, Concluding Observations: Mexico, UN Doc. CAT/C/MEX/CO/5-6 (2012), para. 18; Report of the Special Rapporteur on the Independence of Judges and Lawyers on Her Mission to Tunisia, UN Doc. A/HRC/29/26/Add.3 (2015), para. 76; Report of the Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-recurrence, Pablo de Greiff: Mission to Tunisia, UN Doc. A/HRC/24/42/Add.1 (2013), para. 51; Report of the Special Rapporteur on the Independence of Judges and Lawyers, Leandro Despouy: Mission to the Democratic Republic of the Congo, UN Doc. A/HRC/8/4/Add.2 (2008), para. 71.
Human Rights Committee, Concluding Observations: Kyrgyzstan, UN Doc. CCPR/C/KGZ/CO/2 (2014), para. 20; Committee against Torture, Concluding Observations: Lebanon, UN Doc. CAT/C/LBN/CO/1 (2017), para. 35.
Committee against Torture, Concluding Observations: Cameroon, UN Doc. CAT/C/CMR/CO/5 (2017), para. 28; Committee against Torture, Concluding Observations: Lebanon, UN Doc. CAT/C/LBN/CO/1 (2017), para. 35; Committee against Torture, Concluding Observations: Pakistan, UN Doc. CAT /C/PAK/CO/1 (2017), para. 11(c); Human Rights Committee, Concluding Observations: Rwanda, UN Doc. CCPR/C/RWA/CO/4 (2016), para. 34; Human Rights Committee, Concluding Observations: Bolivia, UN Doc. CCPR/C/BOL/CO/3 (2013), para. 13; Committee against Torture, Concluding Observations: Mexico, UN Doc. CAT/C/MEX/CO/5-6 (2012), para. 18; Committee against Torture, Concluding Observations: Colombia, UN Doc. CAT/C/COL/CO/4 (2010), para. 16; Report of the Special Rapporteur on the Independence of Judges and Lawyers on Her Mission to Tunisia, UN Doc. A/HRC/29/26/Add.3 (2015), para. 113; Report of the Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-recurrence, Pablo de Greiff: Mission to Tunisia, UN Doc. A/HRC/24/42/Add.1 (2013), para. 85(c); Report of the Special Rapporteur on Violence against Women, Its Causes and Consequences, Yakin Ertürk: Mission to the Democratic Republic of the Congo, UN Doc. A/HRC/7/6/Add.4 (2008), para. 108(b).
UN Human Rights Special Procedures, ‘Drug Courts Pose Dangers of Punitive Approaches Encroaching on Medical and Health Care Matters, UN Experts Say’, 20 March 2019, https://www.unodc.org/documents/commissions/CND/2019/Contributions/UN_Entities/InfoNote20March2019.pdf.
UN Human Rights Special Procedures, ‘Drug Courts Pose Dangers of Punitive Approaches Encroaching on Medical and Health Care Matters, UN Experts Say’, 20 March 2019, https://www.unodc.org/documents/commissions/CND/2019/Contributions/UN_Entities/InfoNote20March2019.pdf.
Report of the Working Group on Arbitrary Detention: Visit to Canada, UN Doc. E/CN.4/2006/7/Add.2 (2005), para. 57; Report of the High Commissioner for Human Rights on Implementation of the Joint Commitment to Effectively Addressing and Countering the World Drug Problem with Regard to Human Rights, UN Doc. A/HRC/39/39 (2018), paras. 53–54.
Report of the High Commissioner for Human Rights on Implementation of the Joint Commitment to Effectively Addressing and Countering the World Drug Problem with Regard to Human Rights, UN Doc. A/HRC/39/39 (2018), para. 54.
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 14, para. 3(c); [European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (1950), art. 6; American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 8(1); African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 7(1)(d); Arab Charter on Human Rights (2004), art. 14(5).
See Report of the Working Group on Arbitrary Detention: Visit to the People’s Republic of China, UN Doc. E/CN.4/1998/44/Add.2 (1997), paras. 81, 97–99; Report of the Working Group on Arbitrary Detention: Visit to Brazil, UN Doc. A/HRC/27/48/Add.3 (2014), paras. 111–119.
Inter-American Commission on Human Rights, Measures Aimed at Reducing the Use of Pretrial Detention in the Americas (2017), para. 90.
Office of the UN High Commissioner for Human Rights, Human Rights Implications of Over Incarceration and Overcrowding: Report of the United Nations High Commissioner for Human Rights, UN Doc. A/HRC/30/19 (2015).
Report of the Working Group on Arbitrary Detention, UN Doc. E/CN.4/2005/6 (2004), para. 68.
UN General Assembly, Resolution 45/116: Model Treaty on Extradition, UN Doc. A/RES/45/116 (1990), annex, art. 3(f).
European Court of Human Rights, Othman v. United Kingdom, Application No. 8139/09, 12 January 2012, para. 258.
European Court of Human Rights, Othman v. United Kingdom, Application No. 8139/09, 12 January 2012, paras. 259, 263, 267.
Committee against Torture, Communication No. 233/2003: Agiza v. Sweden, UN Doc. CAT/C/34/D/233/2003 (2005), paras. 13.4–13.5.
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 3.
Everyone has the right to privacy, including people who use drugs.
In accordance with this right, States should:
i. Adopt legislative, administrative, and other measures to prevent arbitrary and unlawful interference with the privacy, family life, home, and correspondence of people who use drugs.
ii. Ensure the protection of the right to privacy in relation to criminal investigations for drug-related offences.
iii. Adopt legislative and other measures to prevent the disclosure of individuals’ personal health data, including drug test results and drug dependence treatment histories, without their free and informed consent.
iv. Ensure that welfare conditionalities and administrative requirements to access rights and benefits do not unlawfully, unnecessarily, or disproportionately infringe the privacy of those who use drugs.
In addition, States may:
v. Utilise the available flexibilities in the UN drug control conventions to decriminalise the possession, purchase, or cultivation of controlled substances for personal consumption.
The right to privacy is protected in a number of international and regional instruments.[522] For example, the International Covenant on Civil and Political Rights prohibits arbitrary and unlawful interference with a person’s privacy and requires protection of the law against such interference.[523] The right to privacy is also a key component of other rights.[524] For example, the right to health includes the obligation to ensure that health care providers respect confidentiality in health care settings and to otherwise protect the confidentiality of personal health information.[525] State measures compelling the communication or disclosure of personal health information without the individual’s consent must be strictly justified.[526]
Domestic courts in several countries have ruled that the criminalisation of drug possession and cultivation for personal use violates the right to privacy as protected by their respective constitutions.[527] Other examples of potential infringements of this right with regard to drug policy include special investigative techniques used in drug enforcement operations, the use of personal health data derived from drug testing and treatment records, welfare conditionalities, and the requirement to be placed on a government registry to receive harm reduction services or drug dependence treatment.
Investigations
Special investigative techniques that can be used in drug-related cases may give rise, under certain circumstances, to concerns about the impermissible infringement of the right to privacy. Through its case law on secret measures of surveillance, the European Court of Human Rights has developed a set of minimum statutory safeguards to avoid abuses of power and comply with human rights standards, including with respect to the right to privacy. The safeguards define the nature of the offences that may give rise to a surveillance order; categories of people liable to be subject to any such measure; the duration of any such measure; the procedure to be followed for examining, using, and storing the data obtained; the precautions to be taken when communicating the data to other parties; and the circumstances in which recordings may or must be erased or destroyed. In addition, the Court has established that the body issuing authorisations for surveillance orders should be independent[528] and that there should be a form of judicial control or control by an independent body over the issuing body’s activity.[529] Interceptions ordered by the public prosecution, without the possibility of an a priori control by a judicial officer, do not meet the required standards of independence.[530]
In its jurisprudence regarding the interception of communications, the European Court of Human Rights defines the following minimum safeguards for statutory regulation: a definition of the categories of people liable to have their telephones tapped by judicial order; the nature of the offences that may give rise to such an order; a limit on the duration of telephone tapping; a procedure for drawing up summary reports containing intercepted communications; the precautions to be taken in order to communicate the recordings intact and in their entirety for possible inspection by the judge and defence; and the circumstances in which recordings may or must be destroyed, particularly where the accused has been discharged by an investigating judge or acquitted by a court.[531]
Health data, drug testing, and drug treatment
According to the Human Rights Committee, the gathering and holding of personal information on computers, data banks, and other devices by public authorities or private individuals must be regulated by law. States must take effective measures to ensure that information about a person’s private life is not obtained by people not authorised by law to receive, process, and use it. Everyone should have the right to ascertain whether and what personal data is stored in data files and which public authorities or private individuals control or may control their files.[532]
UN human rights mechanisms have raised concerns that the disclosure of private, confidential information about a person’s health status may drive people away from seeking medical attention or drug dependence treatment, out of fear that their illicit drug use will be shared with law enforcement or other State authorities, possibly leading to arrest, imprisonment, greater police attention, or further ill-treatment by health providers, including the imposition of drug dependence ‘treatment’ without their consent.[533] In some jurisdictions, government drug treatment clinics establish registries of people seeking treatment and share this information with law enforcement and other government agencies. This violates the obligation to protect the confidentiality of personal health information[534] and may deter people from seeking treatment.[535] In addition, people from whom such data are collected should be informed – at or prior to the time of collection – of the intended purpose for which the information is being collected, the reasons why it has been requested, and whether it will be shared with government institutions.[536]
The Special Rapporteur on the right to health has found that ‘a lack of confidentiality may deter individuals from seeking advice and treatment, thereby jeopardizing their health and well-being. Thus, States are obliged to take effective measures to ensure medical confidentiality and privacy’.[537] The Committee on the Elimination of Discrimination against Women has likewise observed that ‘while lack of respect for the confidentiality of patients will affect both men and women’, it may especially ‘deter women from seeking advice and treatment’ such as ‘medical care for diseases of the genital tract, for contraception or for incomplete abortion and in cases where they have suffered sexual or physical violence’.[538] This may be especially true for poor and otherwise marginalised women who use drugs. The Supreme Court of Argentina has ruled that health care professionals’ disclosure of confidential information about drug ingestion for use by the police as evidence of drug trafficking violates the right to medical confidentiality, derived from the constitutional right to privacy.[539]
Welfare conditionality
The Committee on Economic, Social and Cultural Rights has expressed concern that conditioning welfare benefits on the results of a drug test lacks a credible evidence base and may deepen stigma against people who use drugs and drive them away from treatment.[540] Such interference with the right to privacy may be lawful in the narrow sense of being pursuant to national law and involving the consent of the person tested, but it may have an unlawful discriminatory impact on people based on their sex or health or economic status.[541] Courts in the United States have held the mandatory or random drug testing of welfare recipients, absent a reasonable suspicion of drug use, to be an unconstitutional violation of privacy protections.[542]
Right to privacy and the internet
The UN General Assembly has raised concern that ‘unlawful or arbitrary surveillance and/or interception of communications, as well as unlawful or arbitrary collection of personal data, as highly intrusive acts, violate the rights to privacy and freedom of expression and may contradict the tenets of a democratic society’. It has also noted that ‘while concerns about public security may justify the gathering and protection of certain sensitive information, States must ensure full compliance with their obligations under international human rights law’.[543] The Office of the UN High Commissioner for Human Rights has stated that inadequate national legislation and enforcement, weak procedural safeguards, and ineffective oversight have contributed to a lack of accountability for arbitrary or unlawful interference in the right to privacy. It has emphasised the need for States to ensure that their laws, policies, and practices conform with international human rights law and to ensure that effective and independent oversight mechanisms are in place.[544]
The UN General Assembly Special Session 2016 Outcome Document recommends a number of measures to support the use of the internet to address drug trafficking, money laundering, and other illicit drug-related activities.[545]
Relationship to the UN drug control conventions
There is sufficient flexibility in the drug control conventions to decriminalise possession and other activities related to the personal consumption of controlled substances, even if not for medical or scientific purposes. The 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances requires only that each State Party establish criminal liability for the intentional ‘possession, purchase or cultivation of drugs for personal consumption’ that is ‘contrary to the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971 Convention’ (e.g., for non-medical or non-scientific use).[546] This obligation is further subject to any ‘constitutional limitations’ of the State Party[547] and to the ‘constitutional principles and basic concepts of [the State Party’s] legal system’.[548] States therefore have the latitude to determine whether imposing criminal liability and sanctions for drug possession, purchase, or cultivation for personal consumption contravenes constitutional provisions or otherwise offends against the basic concepts of their legal system, including in relation to the right to privacy.
Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), art. 12; International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 17; American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 11; [European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (1950), art. 8; Arab Charter on Human Rights (2004), art. 21.
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 17(1).
See, e.g., Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), para. 3.
Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), para. 12(b, c); European Court of Human Rights, Z v. Finland, Application No. 22009/93, 25 February 1997, para. 96; see also Smith v. Jones [1999] 1 SCR 455 (Canada), para. 74 et seq.
European Court of Human Rights, Z v. Finland, Application No. 22009/93, 25 February 1997, para. 96; see also Smith v. Jones [1999] 1 SCR 455 (Canada), para. 74 et seq.
Arriola, Sebastián y otros s/ causa n° 9080 (A. 891. XLIV), Corte Suprema de Justicia de la Nación (Argentina), 25 August 2009; Sentencia C-574/2011, Corte Constitucional (Colombia), 22 July 2011; Amparo en Revisión 237/2014, Suprema Corte de Justicia de la Nación (Mexico), 4 November 2015; Amparo en Revisión 1115/2017, Suprema Corte de Justicia de la Nación (Mexico), 11 April 2015; Amparo en Revisión 623/2017, Suprema Corte de Justicia de la Nación (Mexico), 13 June 2018); Amparo en Revisión 547/2018, Suprema Corte de Justicia de la Nación (Mexico), 31 October 2018; Amparo en Revisión 548/2018, Suprema Corte de Justicia de la Nación (Mexico), 31 October 2018; Minister of Justice and Constitutional Development and Others v. Prince; National Director of Public Prosecutions and Others v. Rubin; National Director of Public Prosecutions and Others v. Acton and Others [2018] ZACC 30 (South Africa).
European Court of Human Rights, Malone v. United Kingdom, Application No. 8691/79, 2 August 1984, para. 67.
European Court of Human Rights, Huvig and Huvig-Sylvestre v. France, Application No. 11105/84, 24 April 1990, para. 33; European Court of Human Rights, Kruslin v. France, Application No. 11801/85, 24 April 1990, para. 34; European Court of Human Rights, Kopp v. Switzerland, Application No. 23224/94, 25 March 1998, para. 72; European Court of Human Rights, Amann v. Switzerland, Application No. 27798/95, 16 February 2000, para. 60; European Court of Human Rights, Iordachi and Others v. Moldova, Application No. 25198/02, 10 February 2009, para. 40.
European Court of Human Rights, Dumitru Popescu v. Romania (2), Application No. 27798/95, 26 April 2007, paras. 70–73.
European Court of Human Rights, Huvig and Huvig-Sylvestre v. France, Application No. 11105/84, 24 April 1990, para. 34; European Court of Human Rights, Kruslin v. France, Application No. 11801/85, 24 April 1990, para. 35; European Court of Human Rights, Valenzuela Contreras v. Spain, Application No. 27671/95, 10 July 1998, para. 46.
Human Rights Committee, General Comment No. 16: Article 17 (Right to Privacy) (1988), para. 10.
Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover, UN Doc. A/65/255 (2010), para. 20; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/22/53 (2013), para. 72.
Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), para. 12.
Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover, UN Doc. A/65/255 (2010), para. 20.
Organization for Economic Cooperation and Development, Guidelines Governing the Protection of Privacy and Transborder Flows of Personal Data (2013), paras. 9, 10.
Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, UN Doc. E/CN.4/2004/49 (2004), para. 40.
Committee on the Elimination of Discrimination against Women, General Recommendation No. 24: Women and Health, UN Doc. A/54/38/Rev.1, chap. I (1999), para. 12(d).
Baldivieso, César Alejandro s/ causa n° 4733 (B. 463, L. XL), Corte Suprema de Justicia de la Nación (Argentina), 20 April 2010.
Committee on Economic, Social and Cultural Rights, Concluding Observations: Australia, UN Doc. C.12/AUS/CO/5 (2017), para. 43.
Communication from Philip Alston, Special Rapporteur on Extreme Poverty and Human Rights, Reference No. OL AUS 5/2017 (2017).
Lebron v. Secretary of Florida Department of Children & Families, 710 F.3d 1202 (11th Cir. 2014) (United States); Marchwinski v. Howard, 113 F. Supp. 2d 1134, 1135 (E.D. Mich. 2000), rev’d, 309 F.3d 330 (6th Cir. 2002), reh’g en banc granted, judgement vacated, 319 F.3d 258 (6th Cir. 2003), aff’d by an equally divided court, 60 F. App’x 601 (6th Cir. 2003) (en banc) (United States).
UN General Assembly, Resolution 68/167: The Right to Privacy in the Digital Age, UN Doc. A/RES/68/167 (2013).
The Right to Privacy in the Digital Age: Report of the Office of the United Nations High Commissioner for Human Rights, UN Doc. A/HRC/27/37 (2014), paras. 47, 50, 51.
UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), paras. 5(p, q, r, s, t).
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 3(2).
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 36; Convention on Psychotropic Substances, 1019 UNTS 14956 (1971), art. 22.
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 3(2).
Everyone has the right to freedom of thought, conscience, and religion, which includes the freedom to manifest one’s religion or belief, either individually or in community with others, in public or private. This right applies to those for whom such manifestations may involve the use of drugs for religious or spiritual purposes.
In accordance with this right, States may:
i. Utilise the available flexibilities in the UN drug control conventions to decriminalise the possession, purchase, or cultivation of controlled substances for personal consumption.
In addition, States should:
ii. Consider exemptions within drug legislation allowing the cultivation and use of controlled substances for religious purposes, including in rituals and ceremonies.
International human rights law protects both the right to hold certain beliefs and the right to manifest those beliefs.[549] Furthermore, the International Covenant on Civil and Political Rights specifically provides for the protection of the rights of ethnic, religious, and linguistic minorities, in community with other members of their group, to profess and practise their religion. The Human Rights Committee has noted that prisoners should continue to enjoy their right to manifest their religion or belief to the fullest extent compatible with the specific nature of their imprisonment.[550] The International Labour Organization’s Indigenous and Tribal Peoples Convention similarly requires States to protect ‘the social, cultural, religious and spiritual values and practices’ of indigenous peoples and the integrity of these practices.[551]
While the right to have or adopt a religion or belief is unconditional, the manifestation of one’s beliefs may be subject to limitations in the interests of public health, public order, or the protection of the rights of others.[552] (See Section V.2.) Some jurisdictions have recognised exceptions to domestic drug control norms on grounds of religious belief, although the scope of the right and what it requires of States has been contentious. Jamaica has amended its legislation to allow Rastafarians the right to use cannabis in their religious ceremonies.[553] In Italy, a drug conviction was reversed on appeal because a lower court had not considered the arguments made by a Rastafarian defendant based on his religious beliefs.[554] In 2002, a challenge to South Africa’s general prohibition on cannabis use without an exemption for Rastafarians’ religious use did not succeed.[555] The case reached the Human Rights Committee, which recognised that ‘the concept of worship extends to ritual and ceremonial acts giving expression to belief, as well as various acts integral to such acts’ and that ‘the use of cannabis is inherent to the manifestation of the Rastafari religion’. But the Committee ultimately found that the prohibition of cannabis without a religious exemption was not a disproportionate limitation on the right to freedom of religion.[556] It should be noted that in subsequent proceedings, the same prohibition on the use, possession, and cultivation of cannabis for personal consumption was declared invalid by the South African Constitutional Court because it infringed constitutional protections on the right to privacy.[557] Thus, there are indications of jurisprudence evolving over time.
Relationship to the UN drug control conventions
In addition to establishing the general obligation to limit the use of narcotic drugs strictly to medical and scientific purposes,[558] the 1961 Single Convention on Narcotic Drugs requires that States abolish a range of traditional practices, including traditional uses of coca leaves, the quasi-medical use of opium, and traditional and religious uses of cannabis.[559] This prohibition creates a degree of tension with the human right to freedom of religion. However, the 1971 Convention on Psychotropic Substances is more open. Although it prohibits the use of Schedule I substances except for scientific and very limited medical purposes,[560] the Convention also permits States ‘on whose territory there are plants growing wild which contain psychotropic substances from among those in Schedule I and which are traditionally used by certain small, clearly determined groups in magical or religious rites’ to submit a reservation to exempt them from the relevant provisions, except for those provisions relating to international trade.[561] Canada, Mexico, Peru, and the United States submitted reservations for these traditional uses when they signed the Convention.[562] Moreover, States need not criminalise traditional or religious practices that fall outside of international prohibitions and may utilise the flexibilities under the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances to decriminalise the possession, purchase, and cultivation of controlled substances for personal consumption.[563]
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 18(1); Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), art. 18; [European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (1950), art. 9; American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 12; African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 8; Arab Charter on Human Rights (2004), arts. 25, 30.
Human Rights Committee, General Comment No. 22: Freedom of Thought, Conscience or Religion, UN Doc. CCPR/C/21/Rev.1/Add.4 (1993), para. 8.
nternational Labour Organization, Indigenous and Tribal Peoples Convention, C169 (1989), art. 5(a, b).
Human Rights Committee, General Comment No. 22: Freedom of Thought, Conscience or Religion, UN Doc. CCPR/C/21/Rev.1/Add.4 (1993), paras. 3, 8.
Jamaica, Dangerous Drugs (Amendment) Act (2015), para. 6.
Cassazione Sesta Sezione Penale n. 28720 del 3 Luglio 2008, Corte Suprema di Cassazione (Italy), 3 July 2008.
Prince v. President of the Law Society of the Cape of Good Hope [2002] ZACC 1 (South Africa); African Commission on Human and Peoples’ Rights, Prince v. South Africa, Merits, Communication No. 255/2002 (2004); Human Rights Committee, Communication No. 1474/2006: Prince v. South Africa, UN Doc. CCPR/C/91/D/1474/2006 (2007), para. 7.3.
Human Rights Committee, Communication No. 1474/2006: Prince v. South Africa, UN Doc. CCPR/C/91/D/1474/2006 (2007), para. 7.2.
Minister of Justice and Constitutional Development and Others v. Prince; National Director of Public Prosecutions and Others v. Rubin; National Director of Public Prosecutions and Others v. Acton and Others [2018] ZACC 30 (South Africa).
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 4(c).
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), arts. 49(2)(d–g).
Convention on Psychotropic Substances, 1019 UNTS 14956 (1971), art. 7.
Convention on Psychotropic Substances, 1019 UNTS 14956 (1971), art. 32(4).
‘Convention on Psychotropic Substances: Declarations and Reservations’, https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=VI-16&chapter=6&lang=en.
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 3(2).
Everyone has the right to freedom of opinion and expression, which includes the right to seek, receive, and impart information and ideas of all kinds through any media of choice. It also includes the right to hold opinions, express ideas, and seek, receive, and impart information about drugs and drug policy.
In accordance with this right, States should:
i. Take all necessary legislative, administrative, and other measures to ensure full enjoyment of the rights to freedom of opinion, expression, and information about matters related to drug laws, policies, and practices, including information and opinions regarding health services for people who use drugs (such as harm reduction interventions); the composition of controlled drugs; the value, meaning, and benefits of traditional, cultural, and religious uses of substances; the human rights of people who use drugs or are otherwise involved in drug-related activities; and reforms to such laws, policies, and practices.
ii. Provide accurate and objective information about drug laws, policies, and regulations; drug-related harms; and drug-related health goods, services, and facilities.
iii. Refrain from censoring or restricting access, including through the application of criminal or other sanctions, to scientific and health-related information about drugs, drug use, drug-related harms, and goods, services, and facilities aimed at preventing or reducing such harms, and refrain from otherwise withholding or intentionally misrepresenting such information.
The right to freedom of opinion and expression is guaranteed by numerous human rights instruments.[576] The International Covenant on Civil and Political Rights requires protection of the right to hold opinions without interference and permits no exception or restriction.[577]
The Special Rapporteur on freedom of opinion and expression, the Human Rights Council, and the General Assembly have affirmed that the rights to freedom of opinion and expression and other rights apply equally online.[578] The Special Rapporteur on freedom of opinion and expression notes that the right to freedom of expression and opinion is an ‘enabler’ that facilitates the exercise of other rights, including the rights to health, to education, to take part in cultural life, to enjoy the benefits of scientific progress and its applications, and to association and assembly.[579] The right to information is part of the right to freedom of expression and is also necessary to realise the right to health and other rights. State restriction, control, manipulation, or censorship of information ‘without any legal basis, or on the basis of broad and ambiguous laws, without justifying the purpose of such actions; and/or in a manner that is clearly unnecessary and/or disproportionate to achieving the intended aim’ may create a ‘chilling effect’ on the right to freedom of opinion and expression, in violation of international human rights law.[580] The Special Rapporteur on freedom of opinion and expression notes that ‘the arbitrary use of criminal law to sanction legitimate expression constitutes one of the gravest forms of restriction to the right’ that may lead to ‘other human rights violations, such as arbitrary detention and torture and other forms of cruel, inhuman or degrading treatment or punishment’.[581]
The Special Rapporteur on cultural rights has noted that ‘States and other stakeholders often refer to the necessity of regulating the dissemination of artistic expressions deemed to, for example … amount to drug propaganda’.The Special Rapporteur has advised that these concerns need to be addressed in compliance with permissible limits on freedom of expression and has encouraged States, when applying these standards, to take into consideration the specific nature of artistic expressions and creations. The Special Rapporteur has noted that ‘through their expressions and creations, artists often question our lives, perceptions of ourselves and others, world visions, power relations, human nature and taboos, eliciting emotional as well as intellectual responses’, that ‘the resort to fiction and the imaginary must be understood and respected as a crucial element of the freedom indispensable for creative activities and artistic expressions’, and that artists ‘should be able to explore the darker side of humanity, and to represent crimes or what some may consider as “immorality”, without being accused of promoting these’.[582]
States have a positive obligation to ensure that people who use drugs and their peers can obtain and impart complete and accurate information necessary to protect their health, lives, and liberty, including information about drug-related harm, including overdose and blood-borne diseases such as HIV; harm reduction and drug dependence treatment services; other drug-related health goods, facilities, and services; and drug law and policy. States should ensure that such information is accessible to everyone without discrimination and refrain from interfering in its dissemination.[583] Laws that censor or restrict access to such information and penalise its dissemination – such as laws proscribing ‘drug propaganda’ or the ‘incitement’, ‘encouragement’, or ‘aiding and abetting’ of drug use – violate protections of the right to freedom of expression and information.
The Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms protects the right of everyone, individually and in association with others, ‘to develop and discuss new human rights ideas and principles and to advocate their acceptance’.[584] This elaborates on the rights to freedom of opinion and expression and to freedom of peaceful assembly and association.[585]
Relationship to the UN drug control conventions
The 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances requires that States, subject to constitutional limitations, criminalise ‘[p]ublicly inciting or inducing others, by any means, to commit any of the offences established in accordance with this article or to use narcotic drugs or psychotropic substances illicitly’.[586] The Commentary on the 1988 Convention recognises that this provision is ‘widely drawn’ and that the wording of encouragement ‘by any means’ is very broad. Originally born of a concern ‘about magazines and films glorifying drug use’,[587] today it could also cover websites. Implementing this provision requires close attention to concomitant guarantees of freedom of expression.[588]
The UN General Assembly Special Session 2016 Outcome Document includes a section on the use of the internet for drug-related activities that includes recommendations on steps to take ‘to prevent and counter drug-related criminal activities using the Internet, consistent with relevant and applicable law’.
Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), art. 19; International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 19; [European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (1950), art. 10; American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 13; African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 9; Arab Charter on Human Rights (2004), art. 32; see also Human Rights Committee, General Comment No. 34: Article 19; Freedoms of Opinion and Expression, UN Doc. CCPR/C/GC/34 (2011).
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 19(1); Human Rights Committee, General Comment No. 34: Article 19; Freedoms of Opinion and Expression, UN Doc. CCPR/C/GC/34 (2011), para. 9.
Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, David Kaye, UN Doc. A/HRC/35/22 (2017), para. 5; UN Human Rights Council, Resolution 32/13: The Promotion, Protection and Enjoyment of Human Rights on the Internet, UN Doc. A/HRC/RES/32/13 (2016), para. 1; UN General Assembly, Resolution 73/179: The Right to Privacy in the Digital Age, UN Doc. A/RES/73/179 (2019), para. 3.
See Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Frank La Rue, UN Doc. A/HRC/17/27 (2011), para. 22.
Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Frank La Rue, UN Doc. A/HRC/17/27 (2011), para. 22.
Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Frank La Rue, UN Doc. A/HRC/17/27 (2011), para. 28.
Report of the Special Rapporteur in the Field of Cultural Rights, Farida Shaheed, The Right to Freedom of Artistic Expression and Creativity, UN Doc. A/HRC/23/34 (2013), paras. 33–35, 37.
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), arts. 2, 19; Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), paras. 12(b), 18.
See also UN General Assembly, Resolution 53/144: Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, UN Doc. A/RES/53/144 (1999), annex, art. 7.
Office of the UN High Commissioner for Human Rights, Commentary to the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (2011), p. 83.
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 3(1)(c)(iii).
Commentary on the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 (1998), p. 74, paras. 3.72–3.73.
UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), para. 5(p).
Everyone has the rights to freedom of association and peaceful assembly. This includes the right to plan, organise, promote, and advertise peaceful marches, protests, and other types of gatherings to express views and advocate for or against changes in drug laws, policies, and practices, and the right to form and join organisations that advocate on matters related to drug laws, policies, and practices or are dedicated to working with individuals or groups affected by drugs and drug control efforts.
In accordance with this right, States should:
i. Take all necessary legislative, administrative, and other measures to ensure full enjoyment of the rights to freedom of association and peaceful assembly with respect to drug laws, policies, and practices.
ii. Refrain from requiring prior authorisation to hold a peaceful assembly regarding drug laws, policies, and practices, and exempt such spontaneous assemblies from prior notification procedures.
iii. Permit associations that advocate on matters related to drug laws, policies, and practices and that work with individuals and groups affected by drugs and drug control efforts, including unregistered associations, to receive and utilise financial contributions from domestic, foreign, and international sources.
The rights to freedom of association and peaceful assembly are guaranteed in numerous international instruments.[589] These political rights play an important role in empowering individuals, including those who are members of marginalised groups, to claim their rights, including the right to participation, and States have a positive obligation to actively protect and facilitate their exercise.[590] Yet in many jurisdictions, individuals who belong to marginalised communities, as well as those who advocate for the rights of such communities, particularly community-led organisations, face stigma, discrimination, legislative barriers, and harassment from State and non-State actors that impede their exercise of the rights to freedom of association and peaceful assembly.[591] Civil society activists and human rights defenders are especially at risk of violations and abuse in the exercise of these rights.[592] This is also frequently the case for those who advocate for the rights of people who use drugs and for the rights of communities affected by drug control efforts, including in particular community-led organisations.
States have an obligation to refrain from unduly interfering with the exercise of the rights to peaceful assembly and association and to facilitate the exercise of these rights.[593] States should make specific efforts to ensure equal and effective protection of the rights of groups or individuals who have historically experienced discrimination.[594] The exercise of the right to freedom of assembly should not be subject to a general requirement of prior authorisation.[595] While international human rights law also does not require advance notification of assembly, in certain specific circumstances such notice may be needed in order to enable State authorities to take measures to protect public safety and order and to ensure the rights and freedoms of others.[596] The Special Rapporteur on the rights to freedom of peaceful assembly and of association recommends that prior notification be required only for large meetings and meetings that may disrupt road traffic.[597] Furthermore, spontaneous assemblies should be recognised in law and exempted from prior notification.[598] Failure to notify authorities should not result in the automatic dissolution of an assembly or subject organisers to criminal sanctions or administrative sanctions resulting in fines or imprisonment.[599] These standards apply equally to peaceful assemblies concerning drug laws, policies, and practices.
The right to freedom of association includes the right to form and join an association and applies equally to everyone, including registered and unregistered entities, people belonging to minority groups, groups at risk, community-led organisations, and human rights defenders.[600] States should ensure that no one, including those involved in unregistered organisations, is criminalised for exercising the right to freedom of association.[601] States should put in place procedures that permit associations to be established after completing a process that is simple, easily accessible, non-discriminatory, and non-onerous or free of charge. Registration bodies should provide a detailed and timely written explanation for denying registration of an association, and such decisions should be open to challenge before an impartial, independent court.[602]
The Committee on the Elimination of Discrimination against Women has noted with concern that insufficient funding of non-governmental organisations, including women’s non-governmental organisations, makes it difficult for them to build capacity to support women’s human rights. The Committee has thus recommended that States ‘develop clear criteria for rendering and ensuring governmental financial support on the national and local level for the work of women’s non-governmental organizations’.[603] UN human rights mechanisms have likewise acknowledged that the ability of civil society associations to access funding, whether from domestic, foreign, or international entities, is an integral part of the right to freedom of association.[604] Domestic funding to support non-governmental organisations may be limited or non-existent in many countries, often making access to funds from international donors and other international sources crucial to the existence of those organisations.[605] Funding restrictions, whether domestic or international, may also disproportionately affect associations that promote unpopular views.[606] UN human rights mechanisms recommend that funds for the purpose of defending human rights be ensured and facilitated by law and that States permit non-governmental organisations to access foreign funding, restricting such access only in the interest of transparency and as required under generally applicable foreign exchange and customs laws.[607] These standards apply equally to associations that advocate on matters related to drug laws, policies, and practices and to associations that work with, or are led by, individuals and groups affected by drugs and drug control efforts.
Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), art. 20; International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), arts. 21, 22; International Convention on the Elimination of All Forms of Racial Discrimination, G.A. Res. 2106A (XX) (1965), art. 5(d)(ix); Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 15; Convention on the Elimination of All Forms of Discrimination against Women, G.A. Res. 34/180 (1979), art. 7; International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, G.A. Res. 45/158 (1990), arts. 26, 40; Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106 (2006), art. 29; African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), arts. 10, 11; African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49 (1990), art. 8; American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), arts. 15, 16; [European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (1950), art. 11; Arab Charter on Human Rights (2004), art. 24(5–7); see also Organization for Security and Cooperation in Europe, Guidelines on Freedom of Peaceful Assembly (2010); African Commission on Human and Peoples’ Rights, Guidelines on Freedom of Association and Assembly in Africa (2017); African Commission on Human and Peoples’ Rights, Policing Assemblies in Africa: Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa (2017).
Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association, Maina Kiai, UN Doc. A/HRC/26/29 (2014), para. 72; Joint Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association and the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions on the Proper Management of Assemblies, UN Doc. A/HRC/31/66 (2016), paras. 37, 40, 42.
Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association, Maina Kiai, UN Doc. A/HRC/26/29 (2014), paras. 10–11.
Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association, UN Doc. A/HRC/38/34 (2018), paras. 28–38.
Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association, Maina Kiai, UN Doc. /HRC/20/27 (2012), paras. 27, 33, 63–64; Joint report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association and the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions on the Proper Management of Assemblies, UN Doc. A/HRC/31/66 (2016), paras. 13–14.
Joint Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association and the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions on the Proper Management of Assemblies, UN Doc. A/HRC/31/66 (2016), paras. 21, 28(b).
Joint Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association and the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions on the Proper Management of Assemblies, UN Doc. A/HRC/31/66 (2016), paras. 21, 28(b).
Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association, Maina Kiai, UN Doc. A/HRC/20/27 (2012), para. 28; Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association, UN Doc. A/HRC/23/29 (2013), para. 52; Joint Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association and the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions on the Proper Management of Assemblies, UN Doc. A/HRC/31/66 (2016), paras. 21, 28(b).
Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association, Maina Kiai, UN Doc. A/HRC/20/27 (2012), para. 28.
Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association, Maina Kiai, UN Doc. A/HRC/20/27 (2012), para. 91; Joint Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association and the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions on the Proper Management of Assemblies, UN Doc. A/HRC/31/66 (2016), para. 23; European Court of Human Rights, Bukta v. Hungary, Application No. 25691/04, 17 July 2007, paras. 35, 36.
Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association, Maina Kiai, UN Doc. A/HRC/20/27 (2012), para. 29; see also European Court of Human Rights, Novikova v. Russia, Application Nos. 25501/07, 57569/11, 80153/12, 5790/13, 35015/13, 12 September 2016, paras. 110, 163; European Court of Human Rights, Sergey Kuznetsov v. Russia, Application No. 10877/04, 23 January 2009, para. 45.
Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association, Maina Kiai, UN Doc. A/HRC/20/27 (2012), paras. 56, 84(b); see also UN General Assembly, Resolution 53/144: Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, UN Doc. A/RES/53/144 (1999), annex, art. 1.
Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association, Maina Kiai, UN Doc. A/HRC/20/27 (2012), paras. 56, 84(c).
Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association, Maina Kiai, UN Doc. A/HRC/20/27 (2012), para. 95.
Committee on the Elimination of Discrimination against Women, Concluding Observations: Lithuania, UN Doc. A/55/38 (Part I) (2000), paras. 154–155.
Committee against Torture, Concluding Observations: Belarus, UN Doc. CAT/C/BLR/CO/4 (2011), para. 25; Committee on the Elimination of Racial Discrimination, Concluding Observations: Ireland, UN Doc. CERD/C/IRL/CO/2 (2005), para. 12; Special Rapporteur on the Situation of Human Rights Defenders, Margaret Sekaggya, UN Doc. A/64/226 (2009), para. 91; Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association, UN Doc. A/HRC/23/39 (2013), para. 16; see also UN General Assembly, Resolution 36/55: Declaration on the Elimination of All Forms of Intolerance Based on Religion or Belief, UN Doc. A/RES/36/55 (1981), para. 6(f); Human Rights Council, Resolution 22/6: Protecting Human Rights Defenders, UN Doc. A/HRC/RES/22/6 (2013); see also UN General Assembly, Resolution 53/144: Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, UN Doc. A/RES/53/144 (1999), annex, art. 13.
Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association, Maina Kiai, UN Doc. A/HRC/20/27 (2012), paras. 69; Report of the Special Representative of the Secretary-General on Human Rights Defenders, Hina Jilani, UN Doc. A/59/401 (2004), para. 75.
Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association, Maina Kiai, UN Doc. A/HRC/26/29 (2014), para. 57.
Report of the UN Special Representative of the Secretary-General on Human Rights Defenders, UN Doc. A/59/401 (2004), para. 82 (l, t); Report of the Special Rapporteur on the Situation of Human Rights Defenders, Margaret Sekaggya, UN Doc. A/64/226 (2009), para. 123.
Everyone has the right to enjoy the highest attainable standard of physical and mental health. This right applies equally in the context of drug laws, policies, and practices.
In accordance with this right, States should:
i. Take deliberate, concrete, and targeted steps to ensure that drug-related and other health care goods, services, and facilities are available on a non-discriminatory basis in sufficient quantity; financially and geographically accessible; acceptable in the sense of being respectful of medical ethics, cultural norms, age, gender, and the communities being served; and of good quality (that is, with a solid evidence base).
ii. Address the social and economic determinants that support or hinder positive health outcomes related to drug use, including stigma and discrimination of various kinds, such as against people who use drugs.
iii. Ensure that demand reduction measures implemented to prevent drug use are based on evidence and compliant with human rights.
iv. Repeal, amend, or discontinue laws, policies, and practices that inhibit access to controlled substances for medical purposes and to health goods, services, and facilities for the prevention of harmful drug use, harm reduction among those who use drugs, and drug dependence treatment.
In addition, States may:
v. Utilise the available flexibilities in the UN drug control conventions to decriminalise the possession, purchase, or cultivation of controlled substances for personal consumption.
The right to the highest attainable standard of physical and mental health is recognised in numerous international instruments.[75] The UN General Assembly and Human Rights Council have consistently reaffirmed this right, and UN human rights treaty bodies have elaborated upon its content.[76] The Commission on Narcotic Drugs has repeatedly reaffirmed the importance of the right to health in the development and implementation of national and local drug policies and practices,[77] as it is closely related to the object and purpose of the UN drug conventions in furthering the ‘health and welfare of mankind’.[78] The UN General Assembly Special Session 2016 Outcome Document also highlights the importance of ensuring the right to health, dedicating a chapter on demand reduction and related measures (including harm reduction interventions) and another on ensuring access to controlled medicines.[79]
Access to health goods, services, and facilities under the right to health is measured by the ‘AAAQ framework’, a standard developed within the UN human rights system that refers to availability, accessibility (defined as non-discrimination, physical accessibility, economic accessibility, and information accessibility), acceptability (with regard to age, gender, culture, and human rights compliance—that is, services must be non-discriminatory and non-stigmatising), and quality.[80] The quality element of the right to health requires that health facilities, goods, and services be scientifically and medically appropriate and of good quality. This requires, inter alia, skilled medical personnel and scientifically approved and unexpired drugs and hospital equipment.[81] The International Narcotics Control Board, which is the body tasked with overseeing States’ implementation of the UN drug conventions, affirms that the AAAQ framework clarifies obligations relating to drug treatment and access to controlled medicines as outlined in the drug control treaties.[82]
Given its complex nature and budgetary implications, the right to health is subject to the principle of ‘progressive realisation’. That is, States must take various measures over time to achieve the full realisation of this right for all. There remain, however, core minimum obligations that must be guaranteed without delay.[83] These core obligations include, among others, providing essential medicines as defined by the World Health Organization (several of which are also internationally controlled substances)[84] and ensuring access on a non-discriminatory basis, especially for vulnerable and marginalised groups, to those health goods, services, and facilities that are available.
Underlying and social determinants of health
As the Committee on Economic, Social and Cultural Rights has stated, the right to health is an inclusive right extending not only to timely and appropriate health care but also to ‘a wide range of socio-economic factors that promote conditions in which people can lead a healthy life’.[85] In this way the right to health supports attention to the ‘social determinants of health’, which drives global health work and underpins Sustainable Development Goal 3. For example, the Committee on Economic, Social and Cultural Rights has raised concern about stigma and discrimination directed against people who use drugs, as these social factors impede access to health services protected under the right to health.[86]
The Commission on Narcotic Drugs has called on UN entities and Member States to take measures to address the negative effects that social stigma related to drug use has on the availability, access, and delivery of health care and social services for people who use drugs.[87] The UN General Assembly Special Session 2016 Outcome Document likewise calls on States to ‘prevent social marginalization and promote non-stigmatising attitudes’ towards people who use drugs in an effort to facilitate access to treatment and care.[88]
The right to health further includes the right to certain services, goods, and commodities that are outside of health care but are nonetheless essential for health. These elements, referred to as the ‘underlying determinants of health’, include ‘food and nutrition, housing, access to safe and potable water and adequate sanitation, safe and healthy working conditions, and a healthy environment’.[89] Each is linked to related human rights (e.g., the right to adequate housing) and is also subject to the AAAQ framework and progressive realisation.
Legal determinants: Criminalisation and health
Legal frameworks can hinder or support health outcomes, and there is therefore increasing attention to the ‘legal determinants of health’.[90] In this context, the criminalisation of drug use and possession for personal use affects the realisation of the right to health.[91] The criminalisation of drug use and possession for personal use, as well as related law enforcement practices, can lead people who use drugs to be displaced from areas served by harm reduction programmes, thereby impeding their access to sterile syringes, opioid agonist therapy, and outreach workers. Such criminalisation can also increase risky behaviours – including the sharing of needles and syringes, hurried injecting, and the use of drugs in unsafe places – that are associated with HIV, viral hepatitis, and premature death due to overdose.[92] The stigma created or reinforced through punitive enforcement and treatment regimes (including targeted abuse and violence towards people who use drugs) and policing practices that include the use of excessive force may also increase the risk of physical and mental illness for people who use drugs.[93]
In addition, once a person has a conviction for a drug-related offence, they may face considerable obstacles in obtaining employment and may lose access to government benefits, such as basic income assistance, student loans, public housing, and food assistance, or may face difficulties travelling abroad. The Committee on Economic, Social and Cultural Rights, the Special Rapporteur on the right to health, the Working Group on Arbitrary Detention, and the Office of the UN High Commissioner for Human Rights have recommended the decriminalisation of drug use and possession for personal use as an important step towards fulfilling the right to health.[94] The UN system common position on drug control policy, adopted in November 2018, commits to ‘stepping up our joint efforts and supporting each other … [t]o promote alternatives to conviction and punishment in appropriate cases, including the decriminalization of drug possession for personal use’.[95] Twelve UN agencies have committed to supporting States in reviewing and repealing laws criminalising drug use and the possession of drugs for personal use, on the basis that they have been proven to have negative health outcomes and that they counter public health evidence.[96] In 2014, as part of its recommendations to increase HIV prevention, testing, and treatment for people who use drugs, the World Health Organization recommended that countries work towards the decriminalisation of drug use as a strategy to reduce incarceration and support access to HIV-related services for people who use drugs.[97]
The International Narcotics Control Board has raised concern that many State policies ‘to address drug-related criminality, including personal use, have continued to be rooted primarily in punitive criminal justice responses, which include prosecution and incarceration and as part of which alternative measures such as treatment, rehabilitation and social integration remain underutilized’.[98] At the same time, many States have come to see drug use and dependence as a public health issue requiring health-centred, not punitive, responses.[99] This is consistent with States’ obligations under the drug conventions, which require them to establish certain behaviours as punishable, subject to the constitutional principles of the State and the principle of proportionality.[100] The conventions thus do not oblige States to adopt a punitive response or to incarcerate those who commit minor drug-related offences, including possession of small quantities of drugs for personal use.[101]
The UN General Assembly Special Session 2016 Outcome Document also encourages States to provide ‘alternative or additional measures with regard to conviction or punishment’, mentioning the UN Standard Minimum Rules for Non-custodial Measures (also known as the Tokyo Rules), as a relevant standard to follow.[102]
Relationship to the UN drug control conventions
Under the UN drug control conventions, States have an obligation to undertake demand reduction measures, which are measures aimed at the prevention of illicit drug use.[103] The drug control conventions do not prohibit harm reduction interventions – that is, policies, programmes, and practices aiming to minimise negative health, social, and legal impacts associated with drug use, drug policies, and drug laws.[104] Indeed, such interventions are consistent with the conventions’ stated objective of protecting the health and welfare of mankind.
The UN drug control conventions grant some flexibility with respect to how States treat the possession and use of controlled substances in law, policy, and practice. To a limited degree, and subject to important caveats, these conventions require States Parties to adopt measures to criminalise the possession of controlled substances other than for medical or scientific purposes.[105] However, the conventions also note the importance of measures to protect the health of people who use drugs, requiring governments to ‘take all practicable measures’ to provide ‘treatment, education, after-care, rehabilitation and social reintegration’ of people who use drugs.[106] States may provide measures for treatment, education, rehabilitation, after-care, and social reintegration as alternatives to conviction or punishment for the possession, purchase, or cultivation of drugs for personal use and in ‘appropriate cases of a minor nature’.[107] This flexibility is reflected in the UN General Assembly Special Session 2016 Outcome Document.[108] Therefore, even if such behaviours are considered illegal, they need not be subject to criminal or administrative punishment.
The UN drug conventions also contain sufficient flexibility to decriminalise possession and other activities related to the personal consumption of controlled substances, even if not for medical or scientific purposes. The 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances requires only that each State Party establish criminal liability for the intentional ‘possession, purchase or cultivation of drugs for personal consumption’ that is ‘contrary to the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971 Convention’ (e.g., for non-medical or non-scientific use).[109] Furthermore, this obligation is subject to any ‘constitutional limitations’ of the State Party[110] and to the ‘constitutional principles and basic concepts of [the State Party’s] legal system’.[111] States therefore have the latitude to determine whether imposing criminal liability or sanctions for possession, purchase, or cultivation for personal consumption contravenes constitutional provisions – such as the right to privacy or the right to health – or otherwise offends against the basic concepts of their legal system, including basic concepts of criminal law.
International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI) (1966), art. 12; Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 24; Convention on the Elimination of All Forms of Discrimination against Women, G.A. Res. 34/180 (1979), art. 12; Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106 (2006), art. 25; European Social Charter (Revised), ETS No. 163 (1996), art. 11; Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, O.A.S. Treaty Series No. 69 (1988), art. 10; African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 16; Arab Charter on Human Rights (2004), art. 39(1); see also Arab Charter on Human Rights (2004), art. 39(g)(2) (steps necessary to fulfil obligations under the right to health include ‘[f]ight against tobacco, drugs, and psychotropic substances’); Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), art. 25.
Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000); Committee on Economic, Social and Cultural Rights, General Comment No. 22: The Right to Sexual and Reproductive Health, UN Doc. E/C.12/GC/22 (2016); Committee on the Rights of the Child, General Comment No. 15: The Right of the Child to the Highest Attainable Standard of Health, UN Doc. CRC/C/GC/15 (2013); Committee on the Rights of the Child, General Comment No. 4: Adolescent Health and Development in the Context of the Convention on the Rights of the Child, UN Doc. CRC/GC/2003/4 (2003); Committee on the Rights of the Child, General Comment No. 3: HIV/AIDS and the Rights of the Child, UN Doc. CRC/GC/2003/3 (2003); Committee on the Elimination of Discrimination against Women, General Recommendation No. 24: Women and Health, UN Doc. A/54/38/Rev.1, chap. I (1999).
See, e.g., Commission on Narcotic Drugs, Resolution 57/7: Providing Sufficient Health Services to Individuals Affected by Substance Use Disorders During Long-Term and Sustained Economic Downturns (2014); Commission on Narcotic Drugs, Resolution 55/5: Promoting Strategies and Measures Addressing Specific Needs of Women in the Context of Comprehensive and Integrated Drug Demand Reduction Programmes and Strategies (2012).
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), preamble.
UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), chs. 1, 2.
Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), para. 13.
Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), para. 13(d).
International Narcotics Control Board, Annual Report 2017 (2018).
Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), paras. 43, 44.
World Health Organization, WHO Model List of Essential Medicines, 20th ed. (2017); World Health Organization, WHO Model List of Essential Medicines for Children, 6th ed. (2017); Schedules of the Single Convention on Narcotic Drugs of 1961 as amended by the 1972 Protocol, as of 16 May 2018.
Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), para. 4.
Committee on Economic, Social and Cultural Rights, Concluding Observations: Bulgaria, UN Doc. E/C.12/BGR/CO/6 (2019), paras. 46, 47; Committee on Economic, Social and Cultural Rights, Concluding Observations: Mauritius, UN Doc. E/C.12/MUS/CO/5 (2019), paras. 53, 54.
Commission on Narcotic Drugs, Resolution 61/11: Promoting Non-stigmatizing Attitudes to Ensure the Availability, Access and Delivery of Healthcare and Social Services for Drug Users (2018).
UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), para. 1(j).
Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), para. 4.
L.O. Gostin, J. T. Monahan, J. Kaldor, et al., ‘The Legal Determinants of Health: Harnessing the Power of Law for Global Health and Sustainable Development’, Lancet, vol. 393, issue 10183 (2019), pp. 1857–1910.
Report of the UN High Commissioner for Human Rights: Study on the Impact of the World Drug Problem on the Enjoyment of Human Rights, UN Doc. A/HRC/30/65 (2015), paras. 30, 50; see also Report of the High Commissioner for Human Rights on Implementation of the Joint Commitment to Effectively Addressing and Countering the World Drug Problem with Regard to Human Rights, UN Doc. A/HRC/39/39 (2018), paras. 14–16.
Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover, UN Doc. A/65/255 (2010), paras. 16, 26–27.
Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover, UN Doc. A/65/255 (2010), para. 24.
Committee on Economic, Social and Cultural Rights, Concluding Observations: Benin, UN Doc. E/C.12/BEN/CO/3 (2020), para. 43; Committee on Economic, Social and Cultural Rights, Concluding Observations: Ukraine, UN Doc. E/C.12/UKR/CO/7 (2020), para. 43; Committee on Economic, Social and Cultural Rights, Concluding Observations: Philippines, UN Doc. E/C.12/PHL/CO/5-6 (2016), para. 54; Committee on Economic, Social and Cultural Rights, Concluding Observations: Senegal, UN Doc. E/C.12/SEN/CO/3 (2019), para. 40; Committee on Economic, Social and Cultural Rights, Concluding Observations: Norway, UN Doc. E/C.12/NOR/CO/6 (2020), para. 42; Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover, UN Doc. A/65/255 (2010), paras. 6, 18, 49, 62; Report of the UN High Commissioner for Human Rights: Study on the Impact of the World Drug Problem on the Enjoyment of Human Rights, UN Doc. A/HRC/30/65 (2015), para. 61; Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 122; Report of the Working Group on Arbitrary Detention: Visit to Bhutan, UN Doc. A/HRC/42/39/Add.1 (2019), para. 72.
United Nations System Chief Executives Board for Coordination, Summary of Deliberations, UN Doc. CEB/2018/2 (2019), annex 1.
Joint United Nations Programme on HIV/AIDS, United Nations High Commissioner for Refugees, UNICEF, et al., Joint United Nations Statement on Ending Discrimination in Health Care Settings (2018).
World Health Organization, Consolidated Guidelines on HIV Prevention, Diagnosis, Treatment and Care for Key Populations: 2016 Update (2017), pp. 5, 32, 38, 87; see also Global Commission on HIV and the Law, Risks, Rights and Health (2012), rec. 3.1.4.
International Narcotics Control Board, State Responses to Drug-Related Criminality (2019), para. 2; see also ibid., para. 8.
International Narcotics Control Board, State Responses to Drug-Related Criminality (2019), para. 3.
International Narcotics Control Board, State Responses to Drug-Related Criminality (2019), para. 6.
International Narcotics Control Board, State Responses to Drug-Related Criminality (2019), para. 2.
UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), para. 4(j); see UN General Assembly, Resolution 45/110: United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules), UN Doc. A/RES/45/110 (1990).
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 38; Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 14(4).
UN Office on Drugs and Crime, Flexibility of Treaty Provisions as Regards Harm Reduction Approaches, UN Doc. E/INCB/2002/W.13/SS.5 (2002).
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 36; Convention on Psychotropic Substances, 1019 UNTS 14956 (1971), art. 22; Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 3.
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 38(1); Convention on Psychotropic Substances, 1019 UNTS 14956 (1971), art. 20(1).
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 36(1)(b); Convention on Psychotropic Substances, 1019 UNTS 14956 (1971), art. 22(1)(b); Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 3(4)(c, d).
UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), para. 4(j).
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 3(2).
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 36(1)(a); Convention on Psychotropic Substances, 1019 UNTS 14956 (1971), art. 22(1)(a).
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 3(2).
In accordance with these obligations, States in a position to assist should:
i. Consider providing resources for harm reduction, essential controlled medicines, and other health and social services for people who use drugs and who need controlled drugs for pain relief.
ii. Consider providing resources to develop specific viable and sustainable economic alternatives for individuals and communities particularly vulnerable to exploitation in the illicit drug economy.
iii. Adopt clear policy guidelines incorporating human rights standards for the provision of financial and technical aid, for international judicial and law enforcement cooperation in drug-related criminal matters, and for demand reduction and related projects in recipient States.
iv. Exercise due diligence to ensure that international cooperation and assistance provided or received for drug-related enforcement and for demand reduction and related projects is carried out in full compliance with international law and human rights standards and does not contribute, directly or indirectly, to the use of the death penalty for drug-related crimes, to torture or other cruel, inhuman, or degrading treatment or punishment, or to fostering or perpetuating unlawful discrimination.
States that do not have sufficient capacity or resources to meet all of their human rights obligations should:
i. Seek assistance, including financial and technical assistance, from the international community for harm reduction services, access to essential controlled medicines, and other health and social services for people who use drugs and who need controlled drugs for pain relief.
ii. Seek assistance, including financial and technical assistance, from the international community to develop specific viable and sustainable economic alternatives for individuals and communities particularly vulnerable to exploitation in the illicit drug economy.
iii. Seek assistance, including financial and technical assistance, from the international community for criminal justice system diversion projects and other alternatives to coercive sanctions for drug offences and drug-related offences.
All UN Member States have an obligation to engage in international cooperation, including financial and technical assistance, to achieve universal respect for and observance of all human rights and fundamental freedoms for all, without distinction.[887] States’ obligations with respect to international cooperation and assistance extend to their roles as members of international and regional organisations, including technical agencies and international financial organisations.[888] UN organs and agencies involved in any aspect of development cooperation to promote human rights in the context of their development activities should ‘scrupulously avoid’ involvement in projects that contravene human rights obligations under the International Covenant on Economic, Social and Cultural Rights or that promote or reinforce the violation of Covenant rights.[889]
The Committee on the Rights of the Child has called for countries to seek international cooperation to support the assistance of children who are dependent on drugs.[890] The Committee on the Elimination of Discrimination against Women has called on States to increase efforts, including via international cooperation, to address drug- and gang-related violence responsible for internal displacement and to take urgent measures to provide comprehensive protection and assistance to women who are internally displaced for these reasons.[891]
The Special Rapporteur on extrajudicial, summary, or arbitrary executions has raised concern that international cooperation and collaboration on criminal and other matters may contribute to the imposition of the death penalty for drug-related crimes, in violation of international law and the assisting State’s international legal commitments.[892] The Special Rapporteur recommends that States amend national laws on extradition and deportation to specifically prohibit the enforced transfer of persons to States where there is a genuine risk that the death penalty may be imposed in violation of internationally recognised standards, unless adequate assurances are obtained.[893] The Special Rapporteur also urges States to develop guidelines on the provision of financial and technical aid and mutual assistance, especially with regard to drug-related offences, to ensure that such efforts do not support violations of the right to life.[894] The Working Group on Arbitrary Detention has recommended that States monitor technical and financial assistance provided to other countries for drug enforcement and other operations to ensure that such assistance does not contribute to or result in human rights violations and to reduce or cease such assistance ‘as appropriate’. The Working Group has recommended that international and regional organisations likewise monitor the provision of such assistance to ensure that it does not contribute to human rights violations.[895]
International organisations are also expected to address human rights abuses in connection with their programmes. For example, the UN Office on Drugs and Crime, as part of the UN Secretariat, has issued internal guidance on the promotion and protection of human rights in its work, including its technical assistance programmes, on the basis of the Charter of the United Nations and the UN Human Rights Due Diligence Policy.[896] This guidance includes a range of possible response actions that can be undertaken to address human rights concerns, which should be assessed on a case-by-case basis and in conjunction with the UN system. It also indicates that in situations where a country receiving technical assistance from the UN Office on Drugs and Crime continues, despite the Office’s interventions, to apply the death penalty for drug offences and where the provision of specific technical support could amount to aiding or assisting this rights violation, the Office may employ a temporary freeze or withdrawal of that specific support.
Relationship to the UN drug control conventions
The 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances addresses cooperation in crop eradication efforts, including ‘integrated rural development leading to economically viable alternatives to illicit cultivation’ and ‘other appropriate measures of co-operation’.[897] The Commentary on the 1988 Convention explains that this provision ‘creates no legal obligation on parties, but draws attention to the need, in some countries and regions, for programmes of integrated rural development designed, in effect, to rebuild a local economy hitherto partly or entirely based on illicit cultivation’.[898] The 1988 Convention also includes extensive provisions relating to international cooperation, including extradition,[899] mutual legal assistance,[900] and law enforcement cooperation.[901] States’ human rights obligations apply at all times in the implementation of these provisions.
Charter of the United Nations, 1 UNTS XVI (1945), arts. 1(3), 55, 56; International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI) (1966), art. 2(1), 11, 22, 23; Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 4; Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106 (2006), art. 32; Committee on the Elimination of Discrimination against Women, Concluding Observations: Cameroon, UN Doc. CEDAW/C/CMR/CO/4-5 (2014), para. 48; Committee on the Elimination of Discrimination against Women, Concluding Observations: Tanzania, UN Doc. CEDAW/C/TZA/CO/6 (2008), para. 59; Committee on Economic, Social and Cultural Rights, General Comment No. 3: The Nature of States Parties’ Obligations, UN Doc. E/1991/23 (1990), para. 14; see also Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights (2011), principle 13.
Charter of the United Nations, 1 UNTS XVI (1945), arts. 55, 56; see also Committee on Economic, Social and Cultural Rights, General Comment No. 2: International Technical Assistance Measures, UN Doc. E/1990/23 (1990); Committee on Economic, Social and Cultural Rights, General Comment No. 3: The Nature of States Parties’ Obligations, UN Doc. E/1991/23 (1990); Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000); International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI) (1966), art. 2(1); Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 4; Report of the Special Rapporteur in the Field of Cultural Rights, Farida Shaheed, The Right to Enjoy the Benefits of Scientific Progress and Its Applications, UN Doc. A/HRC/20/26 (2012), para. 68.
Committee on Economic, Social and Cultural Rights, General Comment No. 2: International Technical Assistance Measures, UN Doc. E/1990/23 (1990), paras. 2, 5, 6.
Committee on the Rights of the Child, Concluding Observations: Sierra Leone, UN Doc. CRC/C/15/Add.116 (2000), para. 84.
Committee on the Elimination of Discrimination against Women, Concluding Observations: Honduras, UN Doc. CEDAW/C/HND/CO/7-8 (2016), para. 45.
Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc. A/67/275 (2012), paras. 84, 128; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc. A/70/304 (2015), paras. 102–107.
Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc. A/70/304 (2015), para. 117.
Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc. A/67/275 (2012), paras. 84, 128; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc. A/70/304 (2015), para. 107.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 126(p).
UN Office on Drugs and Crime, UNODC and the Promotion and Protection of Human Rights: Position Paper (2012).
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 14(3).
Commentary on the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 (1998), p. 302, para. 14.18.
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 6.
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 7.
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 9.
Indigenous peoples have the right to their traditional medicines and to maintain their traditional health practices, including those related to their spiritual health. This necessitates the conservation of their vital medicinal plants, some of which have psychoactive properties.
In accordance with these obligations, States should:
i. Refrain from depriving indigenous peoples of the right to cultivate and use psychoactive plants that are essential to the overall health and well-being of their communities.
ii. Repeal, amend, or discontinue laws, policies, and practices that inhibit indigenous peoples’ access to controlled psychoactive substances for the purposes of maintaining or increasing the overall health and well-being of their communities, and consider adopting appropriate legislative, administrative, and other measures to guarantee the exercise of the right to traditional medicines and health practices.
In addition, States may:
iii. Utilise the available flexibilities in the UN drug control conventions to decriminalise indigenous peoples’ possession, purchase, or cultivation of controlled psychoactive substances for personal consumption.
iv. Consider taking specific measures to protect the right of indigenous peoples to use psychoactive substances for specially defined purposes, including those related to their right to health.
The Committee on Economic, Social and Cultural Rights has recommended the protection of vital medicinal plants necessary to the full enjoyment of the right to health of indigenous people.[852] The Committee has further noted that ‘in indigenous communities, the health of the individual is often linked to the health of the society as a whole and has a collective dimension’.[853] The Committee therefore also ‘considers that development-related activities that lead to the displacement of indigenous peoples against their will from their traditional territories and environment, denying them their sources of nutrition and breaking their symbiotic relationship with their lands, has a deleterious effect on their health’.[854]
Relationship to the UN drug control conventions
The 1961 Single Convention on Narcotic Drugs requires that States abolish a range of traditional practices, including traditional uses of coca leaves, the quasi-medical use of opium, and traditional and religious uses of cannabis.[855] It further establishes the general obligation to limit the permissible use of controlled substances strictly to medical and scientific purposes.[856] However, it also makes this general obligation ‘subject to the provisions of this Convention’,[857] which therefore at least permits flexibility to avoid criminalising indigenous individuals for their possession, purchase, or cultivation for personal consumption related to medicinal purposes, although it also leaves other activities involving the use of substances for traditional purposes subject to criminal sanction.
The 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances does allow for ‘traditional licit uses’. However, it also states that any measures taken by States in relation to such substances may not be ‘less stringent’ than required under the 1961 Single Convention,[858] which requires States to destroy coca bushes, opium poppies, and cannabis plants ‘if illegally cultivated’.[859] There is, therefore, an apparent conflict between contemporary indigenous rights standards and the UN drug control conventions that requires close attention.
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 49(2)(d–g).
Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), para. 27; see also UN General Assembly, Resolution 61/295: United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 (2007), art. 24(1).
Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), para. 27; see also UN General Assembly, Resolution 61/295: United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 (2007), arts. 1, 24(1).
Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), para. 27; see also UN General Assembly, Resolution 61/295: United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 (2007), arts. 23, 24(1).
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 4(c).
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 4(c).
See Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 14(2); Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), arts. 4(c), 49(2).
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), arts. 22(2), 26(2).
Children have the rights to health, to be heard in matters related to their own health care, and to decisions based on clinical need in the best interests of the child, including decisions related to interventions for children who use drugs.
In accordance with these rights, States should:
i. Develop accessible, child-sensitive prevention, drug dependence treatment, and harm reduction services.
ii. Ensure that decisions regarding access to drug-related health services are taken in the best interests of the child, with due regard to their evolving capacities.
iii. Remove legal age restrictions on existing drug-related health services.
iv. Ensure that young people who use drugs have access to drug-related health information, and counselling without parental or guardian consent, and that treatment or harm reduction service provision without parental or guardian consent is possible when in the best interests of the individual.
Where these interventions concern drug-related criminality, States should:
v. Target efforts primarily at diversion from the criminal justice system and promote rehabilitation over punishment.
vi. Refrain from criminalising children because of their drug use or possession of drugs for personal use.
vii. Adhere to international juvenile justice standards in all efforts to address and respond to drug-related criminality among children and young people.
The Committee on the Rights of the Child has repeatedly called for ‘child-sensitive’ and ‘youth friendly’ drug treatment and harm reduction services.[637] It has consistently recommended that States Parties put in place and adequately fund such services for this age group[638] and has condemned the practice of placing children in compulsory drug detention and rehabilitation centres.[639] The Working Group on Arbitrary Detention has also recommended that drug treatment and harm reduction services be made available to children on a voluntary basis, without oversight or mandate by the judiciary, and with health care services provided by health professionals.[640] Treatment and harm reduction services should be of sufficient quality and acceptable for the needs of this age group, based on the dynamics of drug use among them. Similarly, the UN General Assembly Special Session 2016 Outcome Document promotes ‘non-discriminatory access to a broad range of interventions … giving special attention to the specific needs of … children and youth’.[641]
To facilitate access to services for those in need, legal age restrictions on existing services should be removed[642] and parental consent conditions should be amended.[643] Legal age restrictions inhibit the ability to conduct best interests assessments[644] based on clinical need[645] and in consultation with the young person.[646] While parental consent or support for access to services and health information may be desirable, it should not be a compulsory condition of access. The Committee on the Rights of the Child has been consistent on this matter with regard to adolescent health and sexual and reproductive services.[647] Alternative methods for determining children’s access to services, rooted in the best interests of the child, have been developed through case law on sexual and reproductive health services.[648] In some countries, these methods have already been adapted to drug-related services.[649]
A range of children’s rights treaties and provisions apply in the context of drug-related criminality. The UN General Assembly Special Session 2016 Outcome Document recognises the importance of ensuring that ‘the specific needs, including mental and physical needs, of underage drug offenders and children affected by drug-related crime are appropriately considered, including in criminal justice proceedings where required, including by providing those in need with drug treatment and related support services’.[650] In addition, international juvenile justice standards are set out in the Convention on the Rights of the Child,[651] the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (also known as the Beijing Rules), the United Nations Guidelines for the Prevention of Juvenile Delinquency (also known as the Riyadh Guidelines), the United Nations Rules for the Protection of Juveniles Deprived of Their Liberty, and the Guidelines for Action on Children in the Criminal Justice System.[652] These all emphasise the need for a focus on drug use prevention and drug treatment for those involved in the juvenile justice system.[653] Beyond such provisions, however, juvenile justice standards apply in their entirety to children involved in drug-related criminality. For example, the minimum age of criminal responsibility should be suitably high, and dual ages of criminal responsibility applying a lower age for drug offences should be avoided. Moreover, the detention of children should be avoided wherever possible.[654]
Children should not be criminalised for their drug use. The Committee on the Rights of the Child has been consistent on this matter due to criminalisation’s counterproductive effects and has recommended the repeal of laws criminalising drug use among children.[655] A high court in South Africa has held that the criminalisation of the possession of cannabis for personal use, where the same conduct was not criminalised for adults, violates children’s rights to equality and – given the profound negative impact of exposure to the criminal justice system – the right to have their best interests taken into account.[656]
Committee on the Rights of the Child, General Comment No. 20: Implementation of the Rights of the Child during Adolescence, UN Doc. CRC/C/GC/20 (2016), para. 64; Committee on the Rights of the Child, Concluding Observations: Luxembourg, UN Doc. CRC/C/15/Add.92 (1998), para. 39; Committee on the Rights of the Child, Concluding Observations: Iraq, UN Doc. CRC/C/15/Add.94 (1998), para. 23; Committee on the Rights of the Child, Concluding Observations: Czech Republic, UN Doc. CRC/C/15/Add.201 (2003), para. 51; Committee on the Rights of the Child, Concluding Observations: Moldova, UN Doc. CRC/C/MDA/CO/3 (2009), para. 55(g); Committee on the Rights of the Child, Concluding Observations: Tunisia, UN Doc. CRC/C/TUN/CO/3 (2010), para. 54; Concluding Observations: Austria, UN Doc. CRC/C/AUT/CO/3-4 (2012), para. 51; Committee on the Rights of the Child, Concluding Observations: Fiji, UN Doc. CRC/C/FJI/CO/2-4 (2014), para. 52; Concluding Observations: Ghana, UN Doc. CRC/C/GHA/CO/3-5 (2015), para. 52(f); Committee on the Rights of the Child, Concluding Observations: Angola, UN Doc. CRC/C/AGO/CO/5-7 (2018), para. 30(a); Concluding Observations: Portugal, UN Doc. CRC/C/PRT/CO/5-6 (2019), para. 36(c); Concluding Observations: Micronesia, UN Doc. CRC/C/FSM/CO/2 (2020), para. 55(d); Concluding Observations: Cook Islands, UN Doc. CRC/C/COK/CO/2-5 (2020), para. 43(3); Concluding Observations: Belarus, UN Doc. CRC/C/BLR/CO/5-6 (2020), para. 34(a).
Committee on the Rights of the Child, Concluding Observations: Luxembourg, UN Doc. CRC/C/15/Add.92 (1998), para. 39; Committee on the Rights of the Child, Concluding Observations: Iraq, UN Doc. CRC/C/15/Add.94 (1998), para. 23; Committee on the Rights of the Child, Concluding Observations: Czech Republic, UN Doc. CRC/C/15/Add.201 (2003), para. 51; Committee on the Rights of the Child, Concluding Observations: Moldova, UN Doc. CRC/C/MDA/CO/3 (2009), para. 55(g); Committee on the Rights of the Child, Concluding Observations: Tunisia, UN Doc. CRC/C/TUN/CO/3 (2010), para. 54; Committee on the Rights of the Child, Concluding Observations: Austria, UN Doc. CRC/C/AUT/CO/3-4 (2012), para. 51; Committee on the Rights of the Child, Concluding Observations: Fiji, UN Doc. CRC/C/FJI/CO/2-4 (2014), para. 52; Committee on the Rights of the Child, General Comment No. 20: Implementation of the Rights of the Child during Adolescence, UN Doc. CRC/C/GC/20 (2016), para. 64.
Committee on the Rights of the Child, Concluding Observations: Cambodia, UN Doc. CRC/C/KHM/CO/2-3 (2011), paras. 38–39; Committee on the Rights of the Child, Concluding Observations: Viet Nam, UN Doc. CRC/C/VNM/CO/3-4 (2012), paras. 43–44.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 71.
UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), para. 1(k).
Committee on the Rights of the Child, Concluding Observations: Moldova, UN Doc No CRC/C/MDA/CO/4–5 (2017), para 34(f).
See Committee on the Rights of the Child, Concluding Observations: South Africa, UN Doc. CRC/C/15/Add.122 (2000), para. 31; Committee on the Rights of the Child, Concluding Observations: Turkey, UN Doc. CRC/C/15/Add.152 (2001), para. 54.
Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 3.
Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 24.
Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 12.
See, e.g., Committee on the Rights of the Child, Concluding Observations: Marshall Islands, UN Doc. CRC/C/15/Add.139 (2000), para. 51; Committee on the Rights of the Child, Concluding Observations: Latvia, UN Doc. CRC/C/15/Add.142 (2001), para. 40.
Gillick v. West Norfolk and Wisbech AHA [1985] UKHL 7.
See, e.g., National Institute for Healthcare and Clinical Excellence (UK), Needle and Syringe Programmes: Public Health Guideline (2014); see also World Health Organization, Technical Brief: HIV and Young People Who Inject Drugs (2015).
UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), para. 4(e).
Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 40.
UN General Assembly, Resolution 40/33: United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), UN Doc. A/RES/40/33 (1985); UN General Assembly, Resolution 45/112: United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), UN Doc. A/RES/45/112 (1990); UN General Assembly, Resolution 45/113: United Nations Rules for the Protection of Juveniles Deprived of Their Liberty, UN Doc. A/RES/45/113 (1990); Economic and Social Council, Guidelines for Action on Children in the Criminal Justice System, UN Doc. E/RES/1997/30 (1997).
In particular, UN General Assembly, Resolution 45/112: United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), UN Doc. A/RES/45/112 (1990), paras. 25, 35, 44, 45.
See also Committee on the Rights of the Child, General Comment No. 10: Children’s Rights in Juvenile Justice, UN Doc. CRC/C/GC/10 (2007).
Committee on the Rights of the Child, Concluding Observations: United Kingdom (Isle of Man), UN Doc. CRC/C/15/Add.134 (2000), para. 38; Committee on the Rights of the Child, Concluding Observations: Indonesia, UN Doc. CRC/C/15/Add.223 (2004), para. 72; Committee on the Rights of the Child, Concluding Observations: Armenia, UN Doc. CRC/C/15/Add.225 (2004), paras. 62–63; Committee on the Rights of the Child, Concluding Observations: Bolivia, UN Doc. CRC/C/15/Add.256 (2005), para. 62(c); Committee on the Rights of the Child, Concluding Observations: Norway, UN Doc. CRC/C/15/Add.263 (2005), para. 44(b); Committee on the Rights of the Child, Concluding Observations: Denmark, UN Doc. CRC/C/DNK/CO/3 (2005), para. 55(d); Committee on the Rights of the Child, Concluding Observations: Russian Federation, UN Doc. CRC/C/RUS/CO/3 (2005), para. 77(b); Committee on the Rights of the Child, Concluding Observations: Kiribati, UN Doc. CRC/C/KIR/CO/1 (2006), para. 49(c); Committee on the Rights of the Child, Concluding Observations: Marshall Islands, UN Doc. CRC/C/MHL/CO/2 (2007), para. 55(c); Committee on the Rights of the Child, Concluding Observations: Afghanistan, UN Doc. CRC/C/AFG/CO/1 (2011), para. 52(d); Committee on the Rights of the Child, General Comment No. 20: Implementation of the Rights of the Child during Adolescence, UN Doc. CRC/C/GC/20 (2016), para. 64.
In the Matter of the State and LM and 3 Others, Director of Public Prosecutions, Minister of Justice and Correctional Services, Minister of Social Development, Minister of Health, Minister of Basic Education, Minister of Police and Centre for Child Law (amicus curiae), High Court of South Africa, Gauteng, Local Division, Johannesburg, Case Nos. 97/18, 98/18, 99/18, and 100/18 [2020].
States should:
i. Collect and disseminate appropriate information to enable the formulation and implementation of human rights-compliant drug control laws and policies. These data should be disaggregated by relevant factors, including health status (such as drug dependence), age, sex, race and ethnicity, sexual orientation and gender identity, and economic status (including involvement in sex work).
ii. Ensure that data collection for the purpose of drug law and policy formulation, implementation, or other analysis complies with relevant international standards for data protection.
International law and standards recognise that the collection and disaggregation of necessary data, including statistical and research data, is critical to help uncover patterns of discrimination with respect to drug use, drug-related harm, and drug enforcement efforts; to identify and address barriers faced by affected individuals and populations in accessing relevant drug-related and other health-related information, treatment, and care, as well as their affected rights and associated remedies; and to thereby assist States in the implementation of their human rights obligations.[860]
The Committee on the Elimination of Discrimination against Women has raised concern about the lack of data on women who use drugs, both inside and outside prison, and among different age groups,[861] including the lack of data on the availability of antiretroviral drugs for this population;[862] the need for and availability of drug dependence and other health care treatment for women who use drugs;[863] and the incidence and impact of drug and other substance dependence on women and gender relations.[864] The Committee has recommended that States collect data on drug use and drug dependence among women and take measures to address these issues, in prison and society at large, to determine the extent of the problem[865] and its incidence and effects.[866] Specifically, it has called on States to develop appropriate interventions for drug dependence and determine the number of those living with HIV in need of medical care;[867] to understand the possible correlation between drug use and violence against women;[868] to provide information on measures to prevent and reduce abuse;[869] and to provide information on the availability of counselling and rehabilitation services.[870] The Committee has also recommended ‘[c]onducting a nationwide study to establish the number of women who use drugs, including while pregnant, in order to inform strategic planning’.[871]
The Committee on the Elimination of Racial Discrimination has raised concern about the disproportionately high rate of incarceration among indigenous peoples and persons belonging to minority groups, in particular African-Canadians, due in part to the over-policing of these populations, drug policies, and racially biased sentencing and has recommended systematic data collection and public reporting on the demographic composition of the prison population and sentencing of minority offenders.[872]
The Committee against Torture has raised concern about the lack of relevant statistical data and information on the maximum duration of solitary confinement of people in compulsory drug treatment centres and has recommended the collection and regular publication of comprehensive disaggregated data on the use of solitary confinement and restraints, and of related suicide attempts and self-harm.[873] The Human Rights Committee has noted with concern the availability of the death penalty for a number of crimes, including drug-related crimes, that do not meet the threshold of most serious crimes within the meaning of article 6(2) of the International Covenant on Civil Political Rights, as well as the lack of publicly available data on the number of persons sentenced to death, executed, or on death row. It has recommended the publication of official figures on death sentences and executions, disaggregated by sex, age, ethnicity, religion, and crime.[874]
Resolutions issued by the Commission on Narcotic Drugs have highlighted the importance of tools to improve data collection and the monitoring and evaluation of international commitments and have called on States to consider committing budgetary resources for these purposes.[875] The UN General Assembly Special Session 2016 Outcome Document likewise promotes ‘reliable data collection’, requesting that States submit, on a voluntary basis, information about ‘human rights and the health, safety and welfare of all individuals, communities and society’.[876]
See, e.g., Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106 (2006), art. 31; Committee on the Elimination of Discrimination against Women, Concluding Observations: Former Yugoslav Republic of Macedonia, UN Doc. CEDAW/C/MKD/CO/4-5 (2013); Committee on the Elimination of Discrimination against Women, Concluding Observations: Republic of Italy, UN Doc. CEDAW/C/ITA/CO/6 (2011); Committee on the Rights of the Child, Concluding Observations: Kuwait, UN Doc. CRC/C/KWT/CO/2 (2013); Committee on the Rights of the Child, Concluding Observations: Madagascar, UN Doc. CRC/C/MDG/CO/3-4 (2012); Committee on Economic, Social and Cultural Rights, Concluding Observations: Germany, UN Doc. E/C.12/DEU/CO/5 (2011); Committee on Economic, Social and Cultural Rights, Concluding Observations: Monaco, UN Doc. E/C.12/MCO/CO/2-3 (2014).
Committee on the Elimination of Discrimination against Women, Concluding Observations: France, UN Doc. A/58/38 (Supp) (2003), p. 121, para. 277; Committee on the Elimination of Discrimination against Women, Concluding Observations: St. Kitts and Nevis, UN Doc. A/57/38 (Supp) (2002), p. 94, para. 107; Committee on the Elimination of Discrimination against Women, Concluding Observations: Hungary, UN Doc. A/57/38 (Supp) (2002), p. 194, para. 329; Committee on the Elimination of Discrimination against Women, Concluding Observations: Netherlands, UN Doc. A/56/38 (Supp) (2001), p. 67, para. 222.
Committee on the Elimination of Discrimination against Women, Concluding Observations: Albania, UN Doc. CEDAW/C/ALB/CO/3, para. 34 (2010).
Committee on the Elimination of Discrimination against Women, Concluding Observations: Kazakhstan, UN Doc. CEDAW/C/KAZ/CO/3-4 (2014), para. 30; Committee on the Elimination of Discrimination against Women, Concluding Observations: Macedonia, UN Doc. CEDAW/C/MKD/CO/4-5 (2013), para. 33.
Committee on the Elimination of Discrimination against Women, Concluding Observations: Guatemala, UN Doc. A/57/38 (Supp) (2002), p. 176, para. 204.
Committee on the Elimination of Discrimination against Women, Concluding Observations: Moldova, UN Doc. CEDAW/C/MDA/CO/3 (2006), para. 31; Committee on the Elimination of Discrimination against Women, Concluding Observations: France, UN Doc. A/58/38 (Supp) (2003), p. 121, para. 278.
Committee on the Elimination of Discrimination against Women, Concluding Observations: Guatemala, UN Doc. A/57/38 (Supp) (2002), p. 176, para. 204.
Committee on the Elimination of Discrimination against Women, Concluding Observations: Kazakhstan, UN Doc. CEDAW/C/KAZ/CO/3-4 (2014), para. 30; Committee on the Elimination of Discrimination against Women, Concluding Observations: Macedonia, UN Doc. CEDAW/C/MKD/CO/4-5 (2013), para. 34.
Committee on the Elimination of Discrimination against Women, Concluding Observations: St. Kitts and Nevis, UN Doc. A/57/38 (Supp) (2002), p. 94, para. 108.
Committee on the Elimination of Discrimination against Women, Concluding Observations: Hungary, UN Doc. A/57/38 (Supp) (2002), p. 194, para. 330.
Committee on the Elimination of Discrimination against Women, Concluding Observations: Hungary, UN Doc. A/57/38 (Supp) (2002), p. 194, para. 330.
Committee on the Elimination of Discrimination against Women, Concluding Observations: Georgia (2014), UN Doc. CEDAW/C/GEO/CO/4-5, para. 31.
Committee on the Elimination of Racial Discrimination, Concluding Observations: Canada, UN Doc. CERD/C/CAN/CO/21-23 (2017), paras. 15, 16(f).
Committee against Torture, Concluding Observations: China, UN Doc. CAT/C/CHN/CO/5 (2016), paras. 42–43.
Human Rights Committee, Concluding Observations: Viet Nam, UN Doc. CCPR/C/VNM/CO/3 (2019), paras. 23–24.
Commission on Narcotic Drugs, Resolution 56/10: Tools to Improve Data Collection to Monitor and Evaluate the Implementation of the Political Declaration and Plan of Action on International Cooperation towards an Integrated and Balanced Strategy to Counter the World Drug Problem (2013); Commission on Narcotic Drugs, Resolution 54/9: Improving Quality and Building Monitoring Capacity for the Collection, Reporting and Analysis of Data on the World Drug Problem and Policy Responses to It (2011).
UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), para. 4(h).
States should:
i. Consider undertaking a transparent review of drug laws and policies to assess human rights compliance.
ii. Subject all proposed drug control legislation and policies to transparent human rights risk and impact assessments.
iii. Under take a budgetary review to ensure the progressive realisation of the right to health in relation to drug use and dependence.
iv. Carefully consider and justify any cuts in the allocation of resources for drug treatment, harm reduction, and other health services for people who use drugs where such cuts entail retrogressive measures.
The International Covenant on Economic, Social and Cultural Rights requires States Parties to take steps, individually and through international assistance and cooperation, to the maximum of their available resources, to progressively achieve the rights recognised in the Covenant.[877] This may require appropriate budgetary planning and the allocation of financial and economic resources for drug treatment, harm reduction, and other health and social services for people who use drugs. The Covenant also requires legislative reform in order to create a legal and policy environment conducive to the implementation of such services.[878]
There is a strong presumption that retrogressive measures taken in relation to the right to health are not permissible. States have the burden of proving that any deliberately retrogressive measures taken have been introduced after the most careful consideration of all alternatives and that they are duly justified by reference to the totality of the rights provided for in the Covenant in the context of the full use of the State Party’s maximum available resources.[879] The adoption of retrogressive measures incompatible with core obligations under the right to health (e.g., the obligations to ensure the right to access health facilities, goods, and services on a non-discriminatory basis and to provide essential drugs, such as methadone and buprenorphine for drug dependence treatment and morphine for pain treatment) constitutes a violation of the right to health.[880]
The Committee on Economic, Social and Cultural Rights, the Committee on the Elimination of Discrimination against Women, and the Committee on the Rights of the Child have raised concerns about the negative impact of austerity measures on access to health in general and on marginalised and disadvantaged groups such as women and children.[881] The Committee on Economic, Social and Cultural Rights has noted with concern the lack of information on the impact of austerity measures on the enjoyment of economic, social, and cultural rights and has recommended that a review be undertaken regarding measures taken to respond to economic crises with a view to ensuring economic, social, and cultural rights and that human rights impact assessments be instituted in the policymaking process.[882] The Committee has also recommended that austerity measures be imposed only if they are temporary, necessary, and proportionate; are not discriminatory; and do not disproportionately affect the rights of disadvantaged and marginalised individuals and groups; further, they should ensure, at all times, the protection of the core content of economic, social, and cultural rights.[883] The Committee on the Elimination of Discrimination against Women has recommended that a study be conducted on the impact of austerity measures on women’s health[884] and adopt temporary special measures in legislation, budgetary measures, and social and health policies as a rapid response to some of the worst problems faced by women in the context of austerity measures.[885] The Committee on the Rights of the Child has recommended that the impact of financial restrictions in the area of health care be minimised and that that austerity measures in the area of health care be evaluated on the basis of a child rights impact assessment to ensure that such measures do not have a negative impact on children’s health and well-being.[886]
International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI) (1966), art. 2(1).
International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI) (1966), art. 2(1); Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), para. 33.
Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), para. 32.
Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), para. 48.
Committee on Economic, Social and Cultural Rights, Concluding Observations: Italy, UN Doc. E/C.12/ITA/CO/5 (2015), para. 46; Committee on Economic, Social and Cultural Rights, Concluding Observations: Greece, UN Doc. E/C.12/GRC/CO/2 (2015), para. 7; Committee on Economic, Social and Cultural Rights, Concluding Observations: Portugal, UN Doc. E/C.12/PRT/CO/4 (2014), para. 6; Committee on the Elimination of Discrimination against Women, Concluding Observations: Barbados, UN Doc. CEDAW/C/BRB/5-8 (2015), para. 35; Committee on the Rights of the Child, Concluding Observations: Portugal, UN Doc. CRC/C/PRT/CO/3-4 (2014), paras. 47, 57; Committee on Economic, Social and Cultural Rights, ‘Letter by the Chairperson of the Committee on Economic, Social and Cultural Rights to States Parties to the International Covenant on Economic, Social and Cultural Rights’, 16 May 2012.
Committee on Economic, Social and Cultural Rights, Concluding Observations: Cyprus, UN Doc. E/C.12/CYP/CO/6 (2016), para. 12
Committee on Economic, Social and Cultural Rights, Concluding Observations: Portugal, UN Doc. E/C.12/PRT/CO/4 (2014), para. 6; Committee on Economic, Social and Cultural Rights, Concluding Observations: Angola, UN Doc. E/C.12/AGO/CO/4-5 (2016), para. 8; Committee on Economic, Social and Cultural Rights, ‘Letter by the Chairperson of the Committee on Economic, Social and Cultural Rights to States Parties to the International Covenant on Economic, Social and Cultural Rights’, 16 May 2012.
UN Doc. Committee on the Elimination of Discrimination against Women, Concluding Observations: Austria, UN Doc. CEDAW/C/AUT/CO/7-8 (2013), para. 39
UN Doc. Committee on the Elimination of Discrimination against Women, Concluding Observations: Portugal, UN Doc. CEDAW/C/PRT/CO/8-9 (2015), para. 19.
Committee on the Rights of the Child, Concluding Observations: Portugal, UN Doc. CRC/C/PRT/CO/3-4 (2014), para. 48.
In accordance with these obligations, States in a position to assist should:
i. Consider providing resources for harm reduction, essential controlled medicines, and other health and social services for people who use drugs and who need controlled drugs for pain relief.
ii. Consider providing resources to develop specific viable and sustainable economic alternatives for individuals and communities particularly vulnerable to exploitation in the illicit drug economy.
iii. Adopt clear policy guidelines incorporating human rights standards for the provision of financial and technical aid, for international judicial and law enforcement cooperation in drug-related criminal matters, and for demand reduction and related projects in recipient States.
iv. Exercise due diligence to ensure that international cooperation and assistance provided or received for drug-related enforcement and for demand reduction and related projects is carried out in full compliance with international law and human rights standards and does not contribute, directly or indirectly, to the use of the death penalty for drug-related crimes, to torture or other cruel, inhuman, or degrading treatment or punishment, or to fostering or perpetuating unlawful discrimination.
States that do not have sufficient capacity or resources to meet all of their human rights obligations should:
i. Seek assistance, including financial and technical assistance, from the international community for harm reduction services, access to essential controlled medicines, and other health and social services for people who use drugs and who need controlled drugs for pain relief.
ii. Seek assistance, including financial and technical assistance, from the international community to develop specific viable and sustainable economic alternatives for individuals and communities particularly vulnerable to exploitation in the illicit drug economy.
iii. Seek assistance, including financial and technical assistance, from the international community for criminal justice system diversion projects and other alternatives to coercive sanctions for drug offences and drug-related offences.
All UN Member States have an obligation to engage in international cooperation, including financial and technical assistance, to achieve universal respect for and observance of all human rights and fundamental freedoms for all, without distinction.[887] States’ obligations with respect to international cooperation and assistance extend to their roles as members of international and regional organisations, including technical agencies and international financial organisations.[888] UN organs and agencies involved in any aspect of development cooperation to promote human rights in the context of their development activities should ‘scrupulously avoid’ involvement in projects that contravene human rights obligations under the International Covenant on Economic, Social and Cultural Rights or that promote or reinforce the violation of Covenant rights.[889]
The Committee on the Rights of the Child has called for countries to seek international cooperation to support the assistance of children who are dependent on drugs.[890] The Committee on the Elimination of Discrimination against Women has called on States to increase efforts, including via international cooperation, to address drug- and gang-related violence responsible for internal displacement and to take urgent measures to provide comprehensive protection and assistance to women who are internally displaced for these reasons.[891]
The Special Rapporteur on extrajudicial, summary, or arbitrary executions has raised concern that international cooperation and collaboration on criminal and other matters may contribute to the imposition of the death penalty for drug-related crimes, in violation of international law and the assisting State’s international legal commitments.[892] The Special Rapporteur recommends that States amend national laws on extradition and deportation to specifically prohibit the enforced transfer of persons to States where there is a genuine risk that the death penalty may be imposed in violation of internationally recognised standards, unless adequate assurances are obtained.[893] The Special Rapporteur also urges States to develop guidelines on the provision of financial and technical aid and mutual assistance, especially with regard to drug-related offences, to ensure that such efforts do not support violations of the right to life.[894] The Working Group on Arbitrary Detention has recommended that States monitor technical and financial assistance provided to other countries for drug enforcement and other operations to ensure that such assistance does not contribute to or result in human rights violations and to reduce or cease such assistance ‘as appropriate’. The Working Group has recommended that international and regional organisations likewise monitor the provision of such assistance to ensure that it does not contribute to human rights violations.[895]
International organisations are also expected to address human rights abuses in connection with their programmes. For example, the UN Office on Drugs and Crime, as part of the UN Secretariat, has issued internal guidance on the promotion and protection of human rights in its work, including its technical assistance programmes, on the basis of the Charter of the United Nations and the UN Human Rights Due Diligence Policy.[896] This guidance includes a range of possible response actions that can be undertaken to address human rights concerns, which should be assessed on a case-by-case basis and in conjunction with the UN system. It also indicates that in situations where a country receiving technical assistance from the UN Office on Drugs and Crime continues, despite the Office’s interventions, to apply the death penalty for drug offences and where the provision of specific technical support could amount to aiding or assisting this rights violation, the Office may employ a temporary freeze or withdrawal of that specific support.
Relationship to the UN drug control conventions
The 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances addresses cooperation in crop eradication efforts, including ‘integrated rural development leading to economically viable alternatives to illicit cultivation’ and ‘other appropriate measures of co-operation’.[897] The Commentary on the 1988 Convention explains that this provision ‘creates no legal obligation on parties, but draws attention to the need, in some countries and regions, for programmes of integrated rural development designed, in effect, to rebuild a local economy hitherto partly or entirely based on illicit cultivation’.[898] The 1988 Convention also includes extensive provisions relating to international cooperation, including extradition,[899] mutual legal assistance,[900] and law enforcement cooperation.[901] States’ human rights obligations apply at all times in the implementation of these provisions.
Charter of the United Nations, 1 UNTS XVI (1945), arts. 1(3), 55, 56; International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI) (1966), art. 2(1), 11, 22, 23; Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 4; Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106 (2006), art. 32; Committee on the Elimination of Discrimination against Women, Concluding Observations: Cameroon, UN Doc. CEDAW/C/CMR/CO/4-5 (2014), para. 48; Committee on the Elimination of Discrimination against Women, Concluding Observations: Tanzania, UN Doc. CEDAW/C/TZA/CO/6 (2008), para. 59; Committee on Economic, Social and Cultural Rights, General Comment No. 3: The Nature of States Parties’ Obligations, UN Doc. E/1991/23 (1990), para. 14; see also Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights (2011), principle 13.
Charter of the United Nations, 1 UNTS XVI (1945), arts. 55, 56; see also Committee on Economic, Social and Cultural Rights, General Comment No. 2: International Technical Assistance Measures, UN Doc. E/1990/23 (1990); Committee on Economic, Social and Cultural Rights, General Comment No. 3: The Nature of States Parties’ Obligations, UN Doc. E/1991/23 (1990); Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000); International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI) (1966), art. 2(1); Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 4; Report of the Special Rapporteur in the Field of Cultural Rights, Farida Shaheed, The Right to Enjoy the Benefits of Scientific Progress and Its Applications, UN Doc. A/HRC/20/26 (2012), para. 68.
Committee on Economic, Social and Cultural Rights, General Comment No. 2: International Technical Assistance Measures, UN Doc. E/1990/23 (1990), paras. 2, 5, 6.
Committee on the Rights of the Child, Concluding Observations: Sierra Leone, UN Doc. CRC/C/15/Add.116 (2000), para. 84.
Committee on the Elimination of Discrimination against Women, Concluding Observations: Honduras, UN Doc. CEDAW/C/HND/CO/7-8 (2016), para. 45.
Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc. A/67/275 (2012), paras. 84, 128; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc. A/70/304 (2015), paras. 102–107.
Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc. A/70/304 (2015), para. 117.
Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc. A/67/275 (2012), paras. 84, 128; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc. A/70/304 (2015), para. 107.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 126(p).
UN Office on Drugs and Crime, UNODC and the Promotion and Protection of Human Rights: Position Paper (2012).
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 14(3).
Commentary on the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 (1998), p. 302, para. 14.18.
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 6.
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 7.
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 9.
