Side event: Human rights: the right to equitable health, social and justice remedies for people who use drugs

Natasha Meli Daudey, Permanent Representative of Malta: Malta has an overarching human rights approach to drug policy and this is one of the reasons why we organized the side event around the same topic. The principle of harm reduction went through our pillars of our truck policy, particularly in terms of equitable and nondiscriminatory access to treatment. We believe that everyone should have the right to basic health care and social services and to the right to the fair and rehabilitative leadership process. Unfortunately, people who use drugs and people with substance use disorders have always been generally treated with disrespect and not afforded the same rights as members of society. This is more worrying as the latest reports and data continue confirming that the victims of substance use disorders are often the most vulnerable and marginalised members of our society who often also lack the resources, access to adequate care. So what we will be trying to do today is to reflect human rights policies, especially those regarding health, social justice remedies for the people who use drugs. I am very happy to be able to welcome with us today four distinguished panellists who will give us their view from the three main areas that we have identified today. Mr. João Goulão, National Coordinator for drugs and problems from Portugal. We have Miriam Estrada Castillo, who is the Vice Chairperson of the Human Rights Council Working Group on Arbitrary Detention. We have Pavlo Pushkar, from the Department for the Execution of Judgments of the Council of Europe. And we have Mr. Thomas Kattau who is the deputy executive secretary of the Pompidou Group.

Joao Goulao, National Coordinator for Drugs Portugal: Good afternoon to all. It is my great pleasure to address you today in my capacity of national coordinators on drugs and alcohol problems of Portugal and chair of the Council of Europe three policy Platform. I will dedicate my introduction to say in a few words about what human rights means for our work. First of all, we believe that human rights are universal, and that protection and promotion should be extended to all individuals, including those who use drugs. The Pompidou Group has been promoting the balanced approach. This does not concern those supply and demand. It also means finding the balance between ensuring public health and safety while at the same time guaranteeing human rights of all individuals. For us a human rights based policies means action and not only reaction, it means that human rights standards should be actively incorporated in all stages of drug policy making, starting from the planning phase, so implementation and monitoring of drug policies to their evaluation. This remains challenging and complex. Thus, we continue to see evidence around the globe, the policies not conceived with a view to protect rights and lead to stigmatization, discrimination and social exclusion. Drug policies are designed as a far reaching act on people who use drugs on different aspects of their daily life, but also on others around them and society as a whole. In Europe, citizens enjoy strong human rights protection. Thanks to the European Convention of Human Rights which examines violations of these rights by state parties and issues legally binding judgement. The principles and basic rights that are let down in the convention are also applicable drug policies. That was that my colleagues from the Council of Europe, who will illustrate how states can be held accountable for human rights violations on drug related issues. And what we can do better to better reflect human rights in our policies. The Pompidou group has a unique position to translate human rights standards, principles and recommendations into action in the drugs field. in fact, it is the only policy platform that has a statutory mission to promote and protect human rights of people. This strong focus on human rights has been enshrined in the new statute of the rule that was adopted in June 2021. In part of the Council of Europe has promoted the human rights based approach in all stages of drug policy making for almost 50 years. Human rights are transversal issue that is taken into account in our competing activities to help member states meet their obligations under the Council of Europe and the United Nations. The Pompidou Group has intensified its work on bringing new human rights to the forefront of their policies from 2017 when a landmark statement was adopted by our member states, the statement emphasises that drugpolicy makers policy implementers and evaluators must be aware and mindful of human rights when making the choices in decision. It was declared important to have processes in place for ongoing assessment to ensure that human rights can continue to be respected and safeguard.

The current plan programme impact of sustainable drug policies of respectful of human rights, emphasises the need into implementation, monitoring and evaluation of drug policy. The current work programme emphasises the need to develop balanced evidence based and human rights respectful drug policies, as well as to promote regular cooperation of governments, professionals, representatives of the civil society along with relevant international organisations. Follow up of this work since last year has been an initiative of the Portuguese presidency, the development of a self-assessment tool on assessing human rights compliance rates, of which you will hear more about later in this session. We take it at our hearts to constantly remind and raise awareness of the importance of a human rights-based approach in drug policy. Why human rights are inherent to all individuals regardless of sex, the things it means the religion, political belief, or any other status. The good example is the treatment of drug use disorders in detention settings, which is one of the topics the Pompidou group deals with. When people into prison in many cases, they are treated as if they left the Human Rights outside the walls, especially when then talking about continuity of their treatment for addiction in prison. Similarly, arbitrary detention can also be a consequence of poorly designed drug policies is still a widely prevalent issue. I believe that our first speaker will tell us more about it. I could not finish without mentioning that My country has been implementing over the last 20 years, a balanced integrated based on scientific evidence, public health oriented and which clearly means the respect of human rights. Let me finished by highlighting an important issue as Member States do not only have the duty to respect not to interfere with human rights of people, but also obligation of actively protect the full enjoyment of their rights. Therefore, we are accountable to our people for designing drug policies that considered human rights of all from the start, we must make before to ensure that these rights test well social injustice remedies can be equally enjoyed by all groups of society, including people who use threats. Thank you for your attention.

Natasha Meli Daudey, Permanent Representative of Malta: Thank you very much for those opening remarks, which I believe has set the scene very well. Above all you have reminded us the very basic of human rights are indeed universal and we should never forget. I now hand over the screen to Dr. Miriam Estrada-Castillo the Vice Chairperson of the Human Rights Council Working Group on Arbitrary Detention, who will be presenting the recommendations arising from the working group for drug law offences. Very happy to have you on to listen to these recommendations.

Dr. Miriam Estrada-Castillo the Vice Chairperson of the Human Rights Council Working Group on Arbitrary Detention: ……

Natasha Meli Daudey, Permanent Representative of Malta: We thank you very much for sharing those recommendations with us. Very interesting and insightful and I hope we will have time later for discussion and maybe for a few questions as well. And I now would like to give the floor Mr. pushkar from the department for the Execution of Judgments of the Council of Europe and he will talk to us about the outcomes of judgments from the European Court of Human Rights on infringement of human rights related to drug issues.

Pavlo Pushkar, Department for the Execution of Judgements, Council of Europe: It is especially difficult for me to take part in this meeting in these difficult times, not only for the Council of Europe, but also for my home country Ukraine. Seeing what is happening both in Ukraine and also seeing a number of people, my relatives, my friends in constantly on the threat of various forms of military action and aggression. Of course, I cannot stand aside and not to mention this and I’m very grateful to my colleagues from the Secretariat and also for the members of this meeting for all the solidarity and support with their colleagues in Europe have shown to the Ukrainians in this difficult situation.

Of course, when we speak about the situation of drug addiction, drug related and any forms of addiction. We might ask ourselves whether in these difficult circumstances, support those addicted to many substances and also those suffering from that addiction is actually important. I think it is crucial at this stage. And I think we need to do everything possible also on behalf of the council of Europe, to support commitments undertaken by the Ukrainian authorities, including and on other states engaged in this horrendous refugee crisis in Europe to deal with issues related to drug addiction and to support this most vulnerable, I would say group of persons at this stage. I think issues of stigmatisation of various forms of addiction or preventive measures against various forms of addiction and I think in certain areas from the group is now taken very active steps in relation to also participation in efforts related to manipulate information and fake news is a very important element to work.

Now, focusing on the arbitrary detention and issues related. These are matters of great interest as well. I think even in these difficult times of crisis and focus on probably similarly to the situation in Ukraine derogating from Article Three of the European Convention of Human Rights in relation for instance, such elements as subsequent therapy, they are still make all the efforts necessary to reinforce commitment to the negations which is done in also from very firm position in the case of the European during these difficult times. I think there were many states are seeing both humanitarian crisis in Ukraine, rapidly evolving but also humanitarian crisis within the refugees we should bear in mind also that there are standards from under the European Convention on Human Rights from which no delegations are possible. And these standards are primarily related to Article Three, article five of the convention and the case of the European Court of Human Rights. And of course there are many states who asked a number of questions as to the potential implications of the decisions that the Parliamentary Assembly of the Council of Europe and the Committee of Ministers will take with regard to the situation and I think today one of the decisions will be taken as well another decision that is within the coming days as far as I’m concerned. So that’s another issue that will be appearing. But I think, in this context, measures related to protection of this most vulnerable group of persons, a deal of urgency, This what I want to say at this stage and I would be very happy to engage in the discussion and we’ll be happy to answer your questions.

Natasha Meli Daudey, Permanent Representative of Malta: Thank you very much for your comments and for being with us and we fully understand that it is even more difficult for you. At this point, allow me to express our full solidarity with Ukraine and we strongly condemn the unprovoked and unjustified military aggression on your country, of course exacerbates the pain and the suffering of the people but of course, of those that were already vulnerable.

Now allow me to go to our last panellist. Mr. Thomas Kattau, deputy executive secretary of the Pompidou Group who will present a self-assessment tool for Human Rights drug Policy Compliance.

Mr. Thomas Kattau, deputy executive secretary of the Pompidou Group: Dear colleagues, ladies and gentlemen, right dimensions in drug policy have risen in prominence, or the International and also of course, on the European level as concerns about policy. And also thanks to this, we are now aware that human rights are also rights that apply always at any moment in time with people who use drugs. But unfortunately, this has not always been the case as Mr Pushkar alluded to. Nowadays, luckily, we are aware that this is the case. And we must remember that in the financial crisis in the early 2000s, it appeared as if it had been forgotten on many levels, because there are services for people who use drugs and those related disorders were amongst the first benefits and service levels. There is more consciousness in order to make sure that these services will continue to be available as they are vital, because there are questions of life and death.

Luckily, this course we have embarked has already been going on and it was in 2016 that brought this discussion really to a global highlight. And since then, we have a discussion. Now what could be indicators by which we can see that our actions or policies related to drug problems actually match the human rights, the methods and standards? I’m very pleased to allow for already announcing it that the Pompidou group under the Portuguese presidency is in the position to make a landmark contribution to this together. Well, this is first of all, due to the fact that the Pompidou group is part of the Council of Europe and its convention human rights, the European Court of Human Rights. These two combined mechanisms provide very clear guidance and inspiration on the subject. The new group is working to bring human rights more to the forefront of drug policy. Since then, we have built up wide and comprehensive expertise on this. Now, with this new unique self-assessment tool, Pompidou group addresses the key questions in practically assessing drug policy compliance. The main one being how can we measure progress in the absence of standardised indicators? In addition, both human rights and drug policies are complex and multidimensional. Bringing them together can seem daunting. So the aim of this new tool is therefore to provide a straightforward practical entry point for human rights assessment across any drug policies. This assessment is meant to be conducted in a collaborative reflective process as the middle of course, the concept does recognise that there’s variation in approaches and very different contexts. By linking topics to human rights standards and more specific probing questions that can be applied in every individual context, we provide a framework that allows to investigate and assess human rights implications for drug policies and practices on national, local or regional level in whichever country. Importantly, this tool will also provide an understanding of realities on the ground, which is another very important factor of understanding. Before you can understand the compliance, you must first of all understand the realities on the ground. I think much work in recent years, actually clarified what human rights law may require. This is very helpful in better understanding state obligations.

This tool actually is therefore intended for analyses by those who are responsible for implementing policies and developing concrete responses. Ideally, it should be put to use and should be used by civil society and other important stakeholders, including people with lived experiences to allow for the tool to generate full potential of understanding the situation. The Pompidou Group will publish the tool, but it will not collate any information from the use. We believe that by doing so, we can more effectively achieve progress and reform rather than by applying the violations approach, which will lead to condemnation of policies and actions. We need to make an assessment of what progress we make, whether it’s gaps, whether it’s still uncharted waters. The aim in other words is not to make any change, the aim is to help to support. All concepts relies on a set of questions designed to enable those who want the tool to explore the compliance of their actions to the international human rights course. We are conscious of existing reporting publications and high workloads is very often understood. Therefore, concept is designed in a way that readily available sources of information are fully sufficient to conduct the assessment and not an extra research needs to be undertaken. It is meant to be adaptable. Following the different needs, different places. To be practical Of course, it cannot be all encompassing, and we recognise some issues are not included. But by including a key selection of recurring issues across social, health and criminal justice domains. With this tool, we have a concrete invitation to work within and across disciplines to explore progress, problems and rights issues. We’ll demonstrate in which way they can be instrumental in choosing the unintended effects of the consequence of drug policy analysis.

Furthermore, it presents clear guidance about the implications of human rights dimensions in drug policy development and the observation of related obligations. As I initially laid out, there have been some misunderstandings as to what human rights. There can be a derogation or whether they can apply crisis information, which basically is an indication that there is sometimes not a full understanding of the existing obligation under existing legal instruments, and it can be costly to ignore. In this sense overall, we hope that this tool will be widely use results and the valuable asset for those who strive for humane drug policies.

Natasha Meli Daudey, Permanent Representative of Malta: Thank you very much for sharing that information with us and very interesting tool but can give clear examples of countries how they can proceed. There is actually a question in the chat. You spoke about criminalization. And the question is that if countries continue to criminalise users committing human rights violations, can there be any meaning consequence.

Pavlo Pushkar, Department for the Execution of Judgements, Council of Europe: This everlasting discussion on what prevails the international suppression, drug suppression or the international human rights law? I think this discussion is slightly artificial from my point of view because in order to give effective human rights, you can also drug suppression in a way as to accommodate the needs for protection of rights. That’s my personal point of view in a sense, but they do consider that case law in European Court of Human Rights suggesting judicial decisions taken by the criminal court, the elements of proportionality should be taken into account. And I think this issue is appearing more and more in the practice of constitutional courts, which are reconsidering the criminal work provisions relating to drug succession. In this sense, I’m seeing that even the European Court of Human Rights and I think that’s the answer that it will have to deal with a certain moment, whether the criminal sanctions which has been involved especially for minor drug related offences, whether they are compatible with requirements. Now, from what angle, it can be done that that’s another view of proportionality on the article based on the principle of personal autonomy, which is being used a lot now in discussions concerning criminal law. We also have to bear in mind the enormous consequences of detention, any form of detention arbitrary detention on the drug addicts, if I may say so all those suffering from drug addiction is enormous effects that such detention for users and these effects they relate also to absolute prohibition of treatment under Article Three of the European Convention. I think we have very strong arguments in favour of no detention, or especially on serious drug use. And of course, then one can argue whether one can qualify them as fully arbitrary or being outside the ambit of the law.

Natasha Meli Daudey, Permanent Representative of Malta: how could the Pompidou Group help civil society push forward the human rights approach to drug policy?

Mr. Thomas Kattau, deputy executive secretary of the Pompidou Group: This is frequently asked, and I think in this respect not only the tool, but actually by looking at what points of entry there is  human rights for advocacy. Very often, there is not really clarity about what human rights are. Some things aren’t a human rights basis, which legally do not constitute human rights. If you have a strong argument, you have a powerful legal argument. For instance, if you can illustrate that public authority and the government is under the obligation to either protect, or take action or not to take action, right, positive or negative obligations as lawyer calls it, then, actually, you can actually stipulate concretely what the consequences for wrongfully and in the end, the most powerful argument as a non governmental organisation. If you can point out to the government, that even actually is undertaken or not undertaken and therefore the human rights that this whole entitled legal and monetary consequences. We have seen this recently in the past is with the court to the court case here, where somebody who is not able to continue the opiate agonist treatment formerly called opioids substitute treatment in prison, because it was seen was simply defined as non-essential treatment in prison in the country. And it was pointed out that this is against the standing case law of the court, and therefore, the case was successful and has a consequence. So one way of reporting civil society is that society engaged with the pompidou group in order to obtain an understanding of what is the human rights, human rights as they are applied by the international conventions actually mean in that concrete endeavour? The Pompidou Group actually precedes the passageway for NGOs to exercise relations, but to engage in the dialogue where we can really help is the dialogue to make understood in which way you can put the human rights law. The views as a powerful tool in driving the human rights agenda, because it’s the highest leverage yet. Thank you.

Joao Goulao, National Coordinator for Drugs Portugal: I think we are really in the context of the Pompidou group, we are moving in the right direction. There are room for improvement in the theme of human rights perspective, and I would like to call your system to the experience we found in Portugal 21 years ago, when decriminalising drug dealers, keeping administrative sanctions for use. In any case people nowadays in possession of small amounts of drugs focus on our use are not submitted to criminal procedures. They are assessed by a panel under the Ministry of Health, trying to identify their needs. And this is a kind of prevention tool where we can interact in less formal environment and interact with people whose strengths fit to assess what kind of needs do they have? are they problematic users in need of treatment. It’s not compulsory. If they are not, always smoke a joint with my friends on the weekends. It’s not from but even then we have the opportunity to discuss. If we find any kind of problem that mean may try to help the citizen to solve, this will probably avoid that the citizen will become a more problematic user later. And this approach has been recognised by the president from the INCB at the UNGASS 2016 in New York, saying that this approach is Portuguese approach is an example of best practices within the spirit of the treaty.

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