Gloria Lai, IDPC
Proportionality is a key principle of international law. It can be found in various international and regional treaties, as well as constitutions at national level. The requirement is that individuals’ rights and freedoms are only restricted to achieve a legitimate aim. When interpreting this principle, the human rights committee has explained what principles need to be followed: the 1st objective is to protect people from cruel and inhumane treatment. The UNODC has called on countries to meet the principle of proportionality. UNODC and INBC have urged countries to stop using the death penalty for drugs offences. Each UN convention states that the fundamental principle of the conventions is to protect the health and welfare of mankind. So offences should be imposed in agreement with that principle. There is a belief that harsh punishment will deter people from engaging in the drug market. It is important that for some offences, there is no requirement for criminal sanctions – this is the case for consumption. Government can, in that case, propose treatment, after care, etc. Proportionality is determined according to the severity of damage caused to society for the legislators. Proportionality is also relevant for judges. Finally, proportionality is relevant to reduce the prison overcrowding issue, and to promote the socio-economic development of communities.
Gilberto Gerra, UNODC
UNODC has organised a conference on this issue. The so called criminalisation of users was related to the provisions of the conventions. I found a strange ting – in article 3, para 4, sub-para d in the 1988 Convention, it indicates that you can apply, not in addition, but as an alternative to criminal sanctions, care, aftercare, social integration. It states “either or in addition to”. So member states have chosen “or” instead of “either”. This is completely crazy. Member states have their own choice, but they cannot say that they are obliged to do this on the basis of the conventions. In Article 18, para 18 of Chapter 1 of the INCB report, they say exactly the same thing – no punishment for possession for personal use. When you speak about a person who has committed a crime in addition to possessing drugs, the conventions also offer the possibility to intervene with alternatives to punishment. These people are not in need for punishment. We should consider reality first. We need to stop the war on drugs and start the war on ignorance. Today, one out of three women who come today to treatment services has a history of trauma and sexual abuse and violence. These women should not be punished. So should not people who use amphetamines in Bangladesh to be able to work for long hours for a very low pay.
Rodrigo Velez, Ecuador CONCEP
We have to start working on new conventions as the current ones are not efficient. But we are not waiting any longer for conventions to be reformed, and we are not asking permission – we are acting to improve our national system are respond to prison overcrowding, vulnerability and violence. I will speak about the experience of my country. In Ecuador, the war on drugs has been an evident failure. Availability has remained high, and human rights violations have been committed. The application of sentences on drugs has had a huge impact on our population. We needed new policies founded on socio-economic development. This is reflected in our new Constitution. On July 4 2008 the National Constituency Assembly voted the decriminalisation of drug possession for personal use. At least 400 people were released on that basis. The decrease in prison overcrowding was noticeable. On Sept 28 2008, the Constitution was approved by 64% in favour – decriminalisation is included in the constitution.
Mike Trace, IDPC
This short intervention will focus on the UK Sentencing Council. It is the sentencing practices that probably have the most direct impact on drug users, on how drug policies are translated on the ground. People receive anything between discharge, and the death penalty – a lot of diversity between countries. The levels of discretion can also vary within countries as well. Some countries draw very little distinction between consumption and distribution, and between low or high level distribution, nor do they make distinctions between substances. In other countries, some countries impose more severe sentences for drugs offences than for rape or murder. The conventions clearly need reform and be modernised. They need to comply with the principles of proportionality.
In the UK, there has been an attempt to refine the principles on which sentencing is applied. Within the 1971 Misuse of Drugs Act (revised many times since), the basic principle of sentencing is based on schedules. We also try to draw distinctions between the amount of possession is deemed for personal use or small- or high-scale supply. At the Sentencing Council, these two criteria were legally valid, but there were decades of experience of unjust sentencing. So they institutionalised a written legal guidance for judges to set out a wider set of criteria. The system in the UK is based on the Misuse of Drugs Act and two levels of drug courts, and for a few years we’ve had the independent Sentencing Council which gives independent advice to judges on sentencing. The guidelines are not legally binding, but if judges do not comply with these, the case would go straight to the appeals courts. The Sentencing Council introduced 3 new concepts for drugs offences sentencing in addition to the original two:
- Culpability – the extent to which an individual is consciously involved in a high level crime: leading role, significant role, or lesser role. E.g. conspiracy to supply
- Motive – importation for intent to supply, acting under fear for instance, or acting as a lead. E.g. cannabis social clubs – there is no profit, no intent to supply people out of the club – this would be interesting under UK law
- Aggravating and mitigating factors
The UK is just one example trying to address proportionality, but there are a range of countries seeking to address the same issue with various tools.
Wilhelm Mende, Vienna Regional Criminal Court
In Austria, we impose punishment after sentencing. For a few years, drug users can be offered treatment as an alternative to prison. Since 1998, there have been various methods of treatment and therapy. The idea is to give stimulus for entering treatment voluntarily. If the person fails the treatment, the sentence will be executed. There are some factors such as previous conviction, quantity of drugs, motivation, financial means. Use of force may also be considered. The court measures should be necessary, reasonable and have chances of success. There is medical surveillance, medical treatment and psychotherapy. This exceeds the costs of imprisonment. All measures are strictly voluntary, the person can leave the programme at any time. The maximum time to stay is 2 years. If the offender does not comply with the treatment measures, the execution will be ordered. If the person re-offends, there is no reason for revocation. What is success? At best no more drug abuse. But at the least, the person changes their behaviour. The suspension of sentence can be from 1 to 3 years. A new sentence can lead to revocation or prolongation of up to 5 years. This can be imposed again and again, there is no limit. The only limitation is lack of prospect for success. Possession of drugs in Austria is a minor crime.