Side Event: Human Rights Compliant and Gender Sensitive Criminal Justice Responses to Drug Problem: Way Forward – Kyoto Crime Congress 2020

Organized by Mexico, Norway and Switzerland, and European Union, Joint United Nations Programme on HIV/AIDS, the Office of the High Commissioner for Human Rights, International Centre on Human Rights and Drug Policy, United Nations Development Programme and World Health Organization

Zaved Mahmood, OHCHR: The Doha Declaration had one specific paragraph on drug related issues. Trying to connect the dots of 3 different commissions: human rights, CND and CCPCJ. Fingers crossed that the Kyoto Crime Congress will go ahead this year!

Credit: Marie Nougier, IDPC

Annete Verster, Global HIV, Hepatitis and STIs Programme, WHO: Public Health and Criminal Justice: How are they related and why is it important? I’d like to start with the importance of the right to health – there is growing recognition that health and human rights unpin drug conventions. For perspective – mortality from illicit drugs is much lower than alcohol and tobacco. HIV is increasing in PWUD but decreasing throughout the world. 1/3 HIV deaths are contributable to IDU. WHO develops norms and standards for harm reduction packages – we’ve now included structural interventions for health. We also commit to standards for treatment, the UNGASS Outcome Doc, Nelson Mandela Rules and Tokyo rules

In many countries, treatment options are offered but as compulsory rehabilitation – but compulsory treatment is not real treatment. <1% of PWID live in countries with sufficient harm reduction coverage. Criminal justice and public health – of course these sectors have different mandates – and often systems are not aligned – different funding sources etc. Access to controlled substances as medicines – need to find the right balance between demand reduction and improving access. Universal health coverage means that PWUD should have access to equitable and quality healthcare ,without financial burdens.

Valerie Lebaux, Chief, Justice Section, Division for Operations, UNODC: UNGASS Outcome doc – what program has been made in last 4 years?

Next year is 5 years since outcome doc. Chapter 4 of Outcome Doc focuses on human rights in context of drug policies. The CND and CCPCJ could be linked through outcomes document. Outcome doc is encouragement to member states to adopt alternatives to conviction and punishment. Cooperation between WHO and UNODC – wide consultation on alternatives to conviction. Countries have different levels of development. Drug use disorders covers a wide spectrum. People in prison for drug related offences constitute a significant amount of people in prison. This consultation established by criminal justice system acts as a gateway to treatment – informed consent must be taken from people in treatment. People with multiple points of contact in criminal justice system must be offered access to treatment if wanting to. Recovering from drug use disorders is hard and CJ system must be compliant with treatment. Non-compliance should be dealt with with proportionality. Treatment must be adapted to specific situation of peoples concerned. Wide coverage and pyramid of treatment for people  – specialised treatment options must be more readily available for all. One of the main challenges – the relationship between the two (criminal justice and public health) are very different.

Zaved: After Doha, the key next meeting was the 2016 UNGASS on drugs, and we need to acknowledge the key progress there. Kyoto needs to take this into account in their deliberation, especially alternatives to punishment and conviction, decriminalisation. There is progress, good practice and we need to take note of that.

Now turning to Leigh, in the UNGASS OD, all member states have committed to take measures to end arbitrary detention. What constitutes arbitrary detention, and what are the practical measures that should be considered?

Credit: Marie Nougier, IDPC

Leigh Toomey, UN Working Group on Arbitrary Detention: The WGAD is delighted to participate in the CND for the first time. I can’t say the same thing of our question: it’s not easy to determine what is arbitrary detention. It is composed of two elements: 1- there has to be a detention or deprivation of liverty. We looked at criminal justice and administrative detention and whether a person is free to leave a place. We saw this in compulsory detention centres for drug users for instance. 2- whether detention is arbitrary. There are many situations where people are detained, but it’s not always arbitrary. We now have 5 categories to define arbitrary:

  • If it’s impossible to determine a legal basis for the detention: people not showed a warrant, not showed before a judge.
  • When the deprivation of liberty is derived from the exercise of one’s rights, for example to freedom of conscience or when using drugs for religious reasons.
  • When somebody is detained in violation of their right to a fair trial: e.g. no effective legal counsel, violation of presumption of innocence, state authorities make statements about a case while the case is still undergoing trial, forced confessions, application of ill treatment during detention, etc.
  • When asylum seekers or refugees are detained without review. This is less common for drug cases.
  • When it occurs in violation of international law because of discriminatory reasons: poor, marginalised, sex workers, ethnic minorities, etc. are targeted for the reasons of being part of a minority.

Zaved: Yesterday in the Plenary, you outlined practical measures to address arbitrary detention – could you mention one? I will get back to you later on.

I now turn to Ann Fordham: participation of civil society at the Crime Congress, why is it important and what are the key challenges you see in this context?

Ann Fordham, International Drug Policy Consortium: Delighted that IDPC is a cosponsor for this event. Thanks to OHCHR in bringing us for bringing us together and tireless efforts in bringing the discussion to Vienna. There are 5 UN entities involved in this event. It’s also great to have Leigh here, it is rare to have Special Procedures present in Vienna. There has been increasing focus on human rights and gender in Vienna over the past decade at CND and CCPCJ. This progress is due in no small part to the tireless efforts of CSOs. CS presence has grown in number and diversity in Vienna.

Regarding challenges, the CND has not been a particularly friendly space for CSOs, but we continue to come, engage and raise these issues in Vienna, and in Geneva as well on the impacts of drug control on human rights. We have seen a shift in rhetoric, in the UNAGSS OD and the acknowledgement in the Ministerial Declaration that drug policies not in line with human rights are a challenge. But we still see serious human rights disasters in the name of drug control, many having been listed already, but especially in criminal justice responses. 1 in 5 prisoners incarcerated globally are in prison for drug offences. Regarding gender: women constitute a small number of the world prisoners, the number of women and girls has increased by 53% since 2000, especially in LA and Asia and this is driven by punitive drug laws. The proportion of women in prison for drug offences is higher than for men: 35% globally compared to 19% for men. The factors for this are disproportionate penalties for drug offences (microtrafficking sentences are higher than rape or murder), lack of alternatives to prison, mandatory pretrial detention, lack of consideration of mitigating factors. There are also special consequences on women who use drugs and women cultivators.

We need to have a voice at this table, we have a role to play and it is acknowledged in the commitments, in the UN Common Position. We have a rich expertise to offer, many have lived experience, we have a watchdog function. We must ensure the voice of those most affected is brought to the table, and in research, analysis and data collection.

IDPC and PRI worked with Linklaters to research 18 jurisdictions looking at sentences for women for drug offences, Sentencing of Women Convicted of Drug Offences.

Our role is clear, we will contine to be here and advocate.

Zaved: I hope CSOs will continue to play an active role as you did at UNGASS. I now turn to Tenu from UNDP. We jointly developed International Guidelines on Human Rights and Drug Policy – we are part of the process to disseminate and implement them. There is a specific section on criminal justice. Can you mention the relevance of these Guidelines vis a vis drug control efforts.

Tenu Avafia, UNDP: Hello everyone, I want to start by saying how pleased we are to cosponsor this side event from UNDP. I am really sorry about not coming this year. I want to highlight the intersection between the Guidelines and human rights/drug policies regarding criminal justice, and what to do to improve the situation.

The way member states have addressed drug policy have contravened human rights obligations. We traced back the history of statements from UN bodies over the past two decades, and these show that all drug control should be aligned with human rights. But what are these human rights obligations in the context of drug laws? So the International Guidelines are the result of three years of consultations to address this gap. We developed the Guidance across various areas of drug policy. The Guidelines apply existing human rights law to drug policy. They address substantive issues ranging from development to criminal justice, health, etc.

On criminal justice: they focus on decriminalisation, fair trial, there are recommendations on women who use drugs.

On decriminalisation of drug use and possession for personal use: 1 in 5 people are incarcerated for drugs, 21% for possession. People can be denied employment, social housing and public benefits, loss of parental rights and child custody if condemned for drug offences. We need to promote alternatives to conviction and punishment, including decriminalisation, to address the concerns posed by criminalisation of PWUD. There are 29 countries that have moved to decriminalisation. But this is not sufficient, we need to address the harmful consequences of criminal convictions and achieve the SDGs. We saw positive steps in this regard. NY State has decriminalised small amounts of cannabis possession and automatic expungement of past convictions.

It’s been a year since the Guidelines were launched at CND 2019, we are now implementing them. CSOs have played a key role for this, we have held a regional dialogue in Mexico City and will explore further dialogues in other parts of the world. We need to see now what steps states are taking in this regard. We will reach out to states, civil society and other groups in this endeavour.

Q&A:

Kunal, India HIV/AIDS Alliance: You are talking about CS participation in Kyoto. What has been done in the implementation of UNGASS and CS participation to be taken forward in Kyoto.

Lauren Tapp, Health Poverty Action: It’s good to hear mentions of sex workers. I was wondering whether WHO and CSOs are thinking more of the interactions between sex workers and people who use drugs and considering guidance on harm reduction about this?

Mexico: We thank the organisers for the invitation to participate in this side event.

Valerie, UNODC: For the Kyoto Congress, the link between criminal justice and the SDGs: there will be a political declaration being negotiated by member states, this will be one of the outcomes. There will also be plenary discussions for member states and observers. There will be workshops and high-level meetings. The declaration is at the moment being negotiated by member states, it’s for them to put forward the issues that are important to them. Workshop 2 will focus on reducing reoffending and offering alternatives to conviction and punishment, where we hope that drug matters will be discussed. Side events and ancillary meetings are an opportunity to discuss these issues in depth.

Leigh, WGAD: The WGAD would ask that you undertake a review of drug laws: decriminalisation, abolish mandatory pre-trial detention, abolish mandatory sentences to ensure alternatives to incarceration.

Annette, WHO: I want to say something on whether the police can take a public health focus. We need to make sure we follow responsibilities of police and those of health professionals. But some countries have invested in a health response and this has reduced costs for the criminal justice system.

Ann, IDPC: There are ongoing efforts on sex work/drug use, but also other groups of people, there is a lot of intersectionality and it is important that we continue the discussion on that.

Tenu, UNDP: Evidence informed, rights based drug policies in the criminal justice system are not discussed much. We hope that member states interpret their human rights obligations in all aspects of their criminal justice systems.

Zaved: All speakers mentioned decriminalisation which is a key point for this discussion. I also acknowledge the presence of the Secretariat of the WGAD here in Vienna. 

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