Side event: The need for proportionality: State responses to drug-related offences

Werner Sipp, INCB. The international community is faced with a number of challenges – one of which is how states should respond to drug related offences. The role of INCB is to explain how this challenge can be met within the frame of the three international drug conventions. This side event is part of this work. Some states apply extra-judicial responses to suspected drug related offences, even for minor offences. Such courses of action are clearly in contravention of the treaties. INCB has repeatedly called for the implementation of the principle of proportionality in their national legislation – in 2007, the thematic section of the INCB report highlighted this. The report called on governments to review the responses by their judicial and executive arms to drug related offences to ensure that they are proportionate. This is a key aspect of a sound and effective drug policy. States are required to respond in a way that does not exceed the gravity of the offence and the seriousness of the crime. The choice of measures, including sanctions, remain the prerogative of states – the conventions require that they are proportionate, as included in all three international drug conventions. Of course, they allow for imprisonment – but this is not the only measure permitted. Only serious offences should be liable to incarceration, those of lesser gravity need not be subject to punitive sanctions. The conventions allow for measures such as rehabilitation, with even wider allowances for possession of drugs for personal use. States should provide treatment and aftercare, and in recent years many states have adjusted their criminal responses accordingly, This development has coincided with a conceptual shift that recognises that drug dependency is a disease which needs to be treated, and for which an over-reliance on punitive measures has serious human consequences and is not effective. Yet some states continue with other approaches, and the INCB urges states to abolish the use of the death penalty as this can never be considered as proportionate. The treaty requires criminal justice responses, which require internationally recognised due process standards. We call on states to put an immediate stop to extrajudicial actions. The conventions do not limit the provisions of treatment measures to just drug users, but may be seen in the wider context of treatment for offenders in general to reduce the likelihood that they will offend again. An effective drug control policy must rely on an balanced, comprehensive approach where human rights are promoted and the principle of proportionality is applied – furthering the health and welfare of mankind. These development do not occur in spite of the conventions, but through their application.

Yuri Fedotov, UNODC. Thank you to INCB for organising this event, the topic is very important. Indeed the conventions allow for alternative measures to be applied to drug offences of a minor nature, further reinforced by the norms and guidance such as the Bangkok Rules and the Nelson Mandela Rules. In the UNGASS Outcome Document, member states committed themselves to following this guidance, and the document further encourages the use of alternatives to incarceration for cases of an appropriate nature, and underlines the importance of drug treatment. The international community can only benefit from the sharing of lessons learned in applying the principle of proportionality that reflects the gravity of offences. INCB has provided clear and steady guidance in this issue in line with the international conventions, most recently in the 2016 INCB report. I repeat the call for member states to end the death penalty. The Office is well placed to support member states in implementing effective responses and ensuring the coordination needed between law enforcement, health and social structures. Last year, we launched a new initiative on treatment for people in contact with the criminal justice system, and will be publishing a handbook outlining the alternatives that can be used. Such measures can help to promote public health and public safety, to help the recovery of individuals, to help address prison overcrowding, and help prevent the recruitment of vulnerable individuals by criminals and terrorists.

Esbjorn Hornberg, VNGOC. I welcome this opportunity on a topic of more importance than ever. It is our strong belief that authorities should employ a person-centred approach, which will benefit the individuals and the communities in which they live. Effective measures can be employed, and VNGOC welcomes the inclusion of this important issue in the UNGASS Outcome Document and in member state statements. The Outcome Document commitments mirror some of the recommendations put forward by the Civil Society Task Force from 2016. In addition, civil society organisations have pointed out that mandatory or obligatory pre-trial detention for drug offences erodes due process and effects access to treatment. People are forced to plead guilty, and sometimes given mandatory minimum sentences for drug offences. Minor drug-related and non-violent sentences lead too often to incarceration. A gender perspective on the topic also shows that disproportionate sentencing and policies also affect women – many women are arrested as drug miles, and their roles in family are abandoned when they are incarceration. An eye for an eye makes the whole world blind, said Mahatma Gandhi. The death penalty has no evidence to support its effectiveness – it is the ultimate form of inhuman and degrading treatment and punishment. Though mindful of different contexts, there is consensus among the CS community that the use of the death penalty is a violation of the right to life. We will continue to push for an end to the death penalty, and for legal guarantees for drug-related offences.

Questions and Comments

In comments, Portugal asked for an update of the 2007 report. INCB replied that they do not update reports, but will revisit this issue in the future. Australia reiterated their opposition to the death penalty. TNI thanked INCB for putting this on the agenda – until recently it was impossible to even agree the language of proportionality – and asked about the forthcoming UNODC Model Drug Laws, which in past iterations even included statements that the death penalty was permitted and did not reflect this discussion of alternatives to incarceration. UNODC responded that the process was on-going – as was called for in a CND resolution a few years ago. VNGOC commented on the clear shift towards human rights in these discussions of drug policy. INCB also emphasised that treatment etc are to be used as alternatives to conviction, not just to incarceration – so used instead of any criminal justice actions. This is in the conventions. IDPC congratulated Werner Sipp for his excellent work as President of the INCB on proportionality, extrajudicial killings and the death penalty – and noted that many UN agencies made written contributions to the UNGASS that called for the removal of criminal sanctions for drug use, and asked if this is the same as what INCB are calling for here? INCB replied that the conventions use two terms: they say that the behaviour outside of medical and scientific use has to be a criminal offences, and the 1988 Convention refers to punishable offences. This means that there must be a sanction within the criminal system – but this is a very wide concept, and this incudes systems that allow administrative sanctions. But there should be sanctions, and these sanctions must be proportionate. And they can, in certain circumstances, be reduced to zero – this is absolutely in line with the conventions. But the first step is to say that it is forbidden, it is not allowed. This is the difficulty of the debate on decriminalisation, depenalisation, etc – there is a lot of confusion. The first step us that this behaviour is not allowed and must be prohibited, but the response can be varied. TNI then argued that all three conventions then clearly stated that drug use does not need to be a punishable offence, and it is fairly easy for countries who do not want to criminalise these behaviours to not make it in any way a criminal offence and there to be no sanction whatsoever. INCB agreed that this is right for drug use itself, but not for possession of drugs for personal use – but this is also a symbolic issue, the user is not the offender, the possessor (and possible supplier) is.

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