Side Event: Practical Measures for the Prohibition of Arbitrary Detention in the Context of Drug Control Measures

Organized by the Office of the High Commissioner for Human Rights with the support of Canada, Ghana, Switzerland, the United Kingdom, and the Commission of Human Rights of the Philippines, the European Union, Harm Reduction International, the International Centre on Human Rights and Drug Policy, the International Drug Policy Consortium, the International Network of People who Use Drugs, the National Human Rights Commission of Nigeria, Penal Reform International, the United Nations Working Group on Arbitrary Detention, UNAIDS and the World Health Organization

Recording in English:

[youtube https://www.youtube.com/watch?v=todpm3CwvLc]

Recording in Spanish:

[youtube https://www.youtube.com/watch?v=JdamaC3TA58&w=560&h=315]

Moderator: Ann Fordham, Executive Director, International Drug Policy Consortium: 

Good afternoon, good evening, good morning. We are delighted that you are able to join us today for this side event at the 65th Session of the CND. I’m actually here in Vienna, and I’m here with the Rapporteur Elina Steinerte for the Working Group of Arbitrary Detention who has just presented its report at the Plenary a moment ago. We are delighted she was able to do it today as she was blocked from presenting to the CND at the 64th reconvened session in December last year.

Given that one of the key drivers to arbitrary detention is draconian drug policies, the urgent recommendation in the groundbreaking report on arbitrary detention needs to be heard here in Vienna at the CND. Excellencies, ladies and gents and dear friends we’re very happy you are able to join us for this event, we have excellent panellists lined up for you and then we hope to have an interactive discussion and exchange at the end. We move to the opening remarks, by video address from Ms. Helen Clark, who is the Chair of the Global Commission on Drug Policy.

Opening remarks: Helen Clark, Chair, Global Commission on Drug Policy:

The Global Commission on Drug Policy (GCDP) appreciates the organisation of this important event, bringing much needed attention to the issue of arbitrary detention. In total more than 2 and a half million people are incarcerated around the world for drug offences. A number which includes those in prison for non-violent offences and those that include drug use and possession for personal use. Repressive drug policies are a massive driver for mass incarceration and of human rights violations. Those detained may suffer a range of punishments depending on the jurisdicaiton, these may vary from lengthy prison terms to viscious forms of ill-treatment in detention and in extremist to the death penalty. Marginalised groups are more likely to suffer mistreatment, moreover those at the lower levels of drug offending are more likely to be detained while organised crime kingpins so often avoid the long arm of the law. Drug related arbitrary detention results in a continuum of human rights violations, again depending on the jurisdiction, there may be no fair trial, there may be interrogation of suspects while on the influence of drugs, there may be testing without consent or judicial warrant and there may be compulsory drug treatment.

Furthermore research demonstrates that access to healthcare for those detained may be limited, a violation of the right to health. For all these reasons, the work of the working group on arbitrary detention has proved pivotal for improving existing drug policies and for making the protection and effective implementation of human rights for all a priority. The study on arbitrary detention examines various aspects of human rights non-compliant drug policy showing us for example how intersectionality plays a significant role in arbitrary detention of members of already marginalised groups. The study also proposes a system for scrutiny by human rights mechanisms of measures taken in the name of drug prevention and control. The Global Commission on Drug Policy is calling on countries to decriminalise the use, possession, acquisition, or cultivation of drugs for personal use, including the possession of associated paraphernalia, promote evidence based and voluntary treatment for drug dependence, and ensure the proportionality of sentencing in particular for minor drug related offences. To close compulsory drug detention centres and ensure that comprehHR services are available in all detention settings. The Global Commission also joins the Working Group on Arbitrary Detention in calling on member states to release people arbitrarily detained for drug possession or use promptly and to release persons confined against their will in drug treatment facilities immediately. A shift towards such policies would place human rights and health as central to coherent drug policies and lead to pragmatic and human rights based approaches. Thank you.

Moderator: Ann Fordham, Executive Director, International Drug Policy Consortium: 

Thank you so much Ms. Clarke,really great to have that opening address from the Global Commission. So, in the outcome document of the UN General Assembly in 2016, UN member states committed to promote and implement effective practical measures to uphold the prohibition of arbitrary arrest and detention in the context of drug control. The 47th Session of the Human Rights Council in 2021, the UN working group on arbitrary detention presented their study, pointing to how drug policies drive arbitrary detention throughout the world. I now welcome Elina Steinerte, Chair of the Working Group on Arbitrary Detention to highlight the findings and recommendations of this study,

Speaker: Elina Steinerte, Chair, Working Group on Arbitrary Detention:

Excellencies, colleagues from the UN agencies and civil society, distinguished attendees, on behalf of the Working Group on Arbitrary Detention I thank all the organisers of this special event for giving the Working Group an opportunity to present its study on arbitrary detention relating to drug policies prepared by the group at the request of the UN Human Rights Council. The Working Group also acknowledges all contributions by the stakeholders, 21 states, 6 national human rights institutions and civil society organisations sent their work to inform this study. This was followed by consultations with the UNODC and the INCB as well as the virtual expert consultation. Let me now highlight some of the main findings and recommendations from this study which aims to provide further guidance to states on practical measures to prohibit and eradicate arbitrary arrest and detention in the context of drug policies. The Working Group notes that punitive drug control laws and policies continue to be used in many states resulting in the increasing instances of arbitrary detention in the context of drug control, with PWUD being particularly at risk of arbitrary detention, the Working Group also notes with concern the increasing disproportionate number of women detained and imprisoned for minor drug related crimes. The so called ‘War on Drugs’ has resulted in further increase in detention for drug related offences, disproportionate actions by some states to apply criminalization provisions of drug control treaties or to incorporate these in the legislations have increased arbitrary detention. Evidence shows that the so-called ‘War on Drugs’ has failed to address the drug problem while also violating human rights, undercutting public health and wasting public resources. The Working Group identified several violations in this context, such as interrogating suspects under the influence of drugs and subjecting persons to testing without their consent or a judicial warrant. the overuse of and prolonged pre-trial detention and physical and psychological violence towards detainees including withholding of OST for drug dependent suspects. 

Now the serious concern is the identified wide range of violations of fair trial standards for persons accused of drug related crimes. Furthermore, disproportionate sentences for drug related offences are often accompanied by the ban on parole or amnesty for those convicted of drug related offences, in some jurisdictions contributing to prison overcrowding and putting in question the compliance with International Standards on Respect for the Dignity of Persons Deprived of Liberty. The Working Group also notes that the imposition of the death penalty for drug related offences and the misuse of drug control to silence human rights defenders, journalists and political opponents is incompatible with insternatitonal standards. Any death penalty sentence following a trial that didn’t meet fair trial standards would be equal to an arbitrary deprivation of liberty. Furthermore, the Working Group also recalled that if the legislation under which the detention took place did not meet international standards that detention is too arbitrary. The Working Group emphasises that there is a need for all drug policies to serve a necessary, proportionate and legitimate aim and therefore recommends that states decriminalize the use and possession of drugs for personal use, review convictions of those already detained for such acts and expunge their records. The states are also encouraged to review procedures relating to detention, arrest, search, testing, pre-trial detention, trial, and sentencing in order to address situations that enable arbitrary detention to occur. Abolishing the mandatory pre-trial detention and mandatory sentencing for those convicted of minor drug related offences, to ensure alternatives to incarceration and proportionate sentencing for drug related offences, also feature prominently among the recommendations made. The Working Group has also observed that criminalization of drug use facilitates the deployment of criminal justice system against drug users in a discriminatory way, with law enforcement agenies often targetting minorities, people of african descent, indigenous peoples, women, persons with disabilities, persons with AIDS, and LGBTI persons, homeless persons, sex workers, migrants, juveniles, the unemployed and ex-convicts may also be thus vulnerable. The Working Group has therefore recommended that states address how their justice process deals with specific groups that may be the object of discrimination in order to stop their targetting. States are also encouraged to protect the rights of indigenous peoples, to produce crops and plants that they have traditionally grown for their religious, medicinal and customary purposes, they should also not take punitive action against subsistence and small scale farmers who produce illicit crops but should work with them to develop income from alternative agricultural crops. 

This study has also revealed the insufficient ability of harm reduction services and drug treatment for drug dependent persons in detention, only some 56 states provide OST in prisons and when provided it may be available only to a limited percentage of inmates. The Working Group further found that despite the evidence in terms of lack of effectiveness of compulsory treatment, the practice of confining people who use or are suspected of using drugs against their will is still widespread and can and does give rise to arbitrary detention. Similarly, courts often coerce defendants with a choice between prison and drug treatment, in the view of the Working Group, emphasis should be placed on harm reduction while addressing the social and economic vulnerabilities. Health care and social care professionals should be solely responsible for the treatment of PWUD, the Working Group considers that the shift from punitive to supportive approach should be translated into making drug treatment voluntary and based on informed consent. All compulsory drug treatment centres should be closed, and further admissions stopped. Instead, voluntary, evidence informed and rights based social services should be made available in the community. 

The Working Group has now turned its focus to dissemination of this study across the widest possible range of stakeholders, and invites initiatives in supporting further dissemination implementation of its recommendations. Firstly, as requested by the Human Rights Council in its Resolution 42/22, the study has been shared with the CND as the policy making body of the UN with great responsibility on drug control matters. I am pleased to inform you that today the Working Group was invited to present the study earlier to the Commission in its reconvened 65th session. Moreover, the Working Group further intends to share this study with the INCB, and initiate a discussion on how to promote the implementation of recommendations through the work of the INCB members. The Working Group also wishes to share this study with a wide range of regional partners including the Horizontal Working Party on Drugs, a coordination responsible for leading and managing the European Councils work on drugs, the Asian Intergovernmental Commission on Human Rights and the Latin American Commission on Drugs and Democracy. Furthermore, the Working Group will streamline the recommendations in its own work, for example its official country visit to states where drug policy debate is pertinent. In this context, the Working Group will encourage states to implement the relevant recommendations contained in the study. To conclude the Working Group stands ready to work with all the stakeholders, including civil society in terms of disseminating the study and its recommendations. I thank you.

Moderator: Ann Fordham, Executive Director, International Drug Policy Consortium: 

Thank you so much Ms. Steinerte. I was in the room when the study was presented earlier and it definitely sparked a very interesting exchange amongst several member states, several of whom pushed back against the very clear recommendations you have just heard but also many member states speaking out in support of having the report presented here in Vienna and supporting further engagement of the human rights regime here in Vienna, it is incredibly important. The study of the Working Group recognizes that civil society and communities including PWUD play a significant and meaningful role in the design, implementation, monitoring and evaluation of drug policies, and despite their critical contribution, they’re regularly victims of arbitrary detention. States must ensure that civil society and communities can work without threat, criminalization, financial penalties or other forms of harassment.

So I’m very delighted today that we have an excellent community representative, Kenya Cuevas, from Mexico. Kenya is a prominent transgender activist, she was arbitrarily detained in her own country, and we will heard from Kenya how this study can help her and her community in their realization of their rights. Kenya you have the floor.

Speaker: Kenya Cuevas, Founder, Casa Hogar Paola Buenrostro, Mexico:

Hello everyone, my name is Kenya Cuevas and I am the director and founder of Casa Hoga Paolo Buenrostro. So I was imprisoned for 11 years, I was arrested for drug consumption, and this is part of a long legacy of discrimination of people in the community, including of myself as a sex worker. Many of us in the sex worker communiy overlap and many times this is one of the most viable forms of work that we can engage in, to engage in sex work.  However, this led to a situation where I was living on the streets for 20 years and this is how I was able to afford my drug dependency, and so I would enter areas where drugs were sold and one time when I did that, this was when I was arrested, they put me in prison for supposedly being in possession of several kilos of cocaine, which I never actually sold, and I was never given a fair trial. This was a violation of my human rights, they also violated my right to gender identity and didn’t respect how I identify and this was very damaging for me during my time with the judicial system. Furthermore, here in Mexico, they sentenced me to 24 years. I always defended myself and used all the legal resources I could access to defend myself, and I was able to get out after 11 years of imprisonment. And really these violations of human rights that we see within prison is something that has changed my life, changed my view on everything, so today upon hearing the report, this is a report that I wish had been in existence while I was in prison because then maybe I wouldn’t have undergone so many violations of my human rights and especially the violence I was subjected to. The infringement of my rights, many different times I was also cirminalized for engaging in sex work, though all of this could have been avoided if we had this report back then. Currently I’m part of a CS org that helps to defend rights, including the rights of people who are deprived of liberty and people who have been previously incarcerated, so currently at the Casa Hoga Paolo Buenrostro, we have shelters for women and we offer comprehensive services where we are able to assist people including in cases where harm reduction is the necessary strategy. Harm reduction is exactly what we need to be aiming towards, where we try to understand what kind of substances are being used, what is the situation of the person and what is the best way forward. 

I appreciate this opportunity to speak for people who have been silenced for so long, people who are very affected by intersectionality, people who are migrants, people who are from indigenous peoples, people living with HIV, the intersectionality with the LGBT community, all of these examples of intersectionality. One person can be a part of all of these groups, and this makes them all the more vulnerable to having these rights violated and then of course once in the prison system, not having a fair chance at life. So even though I was released and completely absolved of my charges, really having been incarcerated had a massive negative impact on my life because it is very difficult to find work for example with a criminal record. In terms of identity documents and not respecting my gender identity this is also a huge violation of human rights of us being able to access our rights as people. So I work with the population of women who have been released from prison. All of these women who are very vulnerable, we work with them to be able to reclaim their rights and to fight for their rights, to demand their rights, to have the right to live, education, work and health. All of these rights are what we defend and we make sure to empower women by providing them with the knowledge they need  to stand and to be able to make an impact on people who have been historically been criminalised for their drug use. To think, I was a 9 year old girl who was kicked out of her house, and I didnt know anything better or what to do, we don’t protect these people so I ended up with a substance use disorder, it was something that helped me feel no more pain, in very difficult conditions I was living in. This is something that I didn havae enough information about my rights, I didn’t know about my rights to live my truth in terms of gender identity. So we really are working to improve the conditions of these people and although we do have a different criminal justice system we still see how people are criminal for the use of substances. We are trying to provide awareness, say it’s not just the people living in the streets that are the criminals here, it’s the authorities who have a lot of corruption and links and are working in tandem with the drug traffickers who are selling these substances to us, these are the real criminals. If we didn’t have this organisation, what would these women do, they wouldn’t have much other recourse. So we speak for the women who have been deprived of our human rights, who have been through these systems, who have historically been silenced, we are always trying to share our experience, to share our voices and stories of the real impact of what the criminalization of drugs does on people and we are trying to spread this message throughout international and national levels. Thank you.

Moderator: Ann Fordham, Executive Director, International Drug Policy Consortium: 

Thank you so much Kenya, thank you for your powerful statement, for your incredible work and your courage for being here today and sharing some of your personal experiences with us at this event. Thank you. The Working Group study among other issues discussed various aspects of human rights compliant with drug policy and the realisation of the right to health and other economical, social, and cultural rights. The Working Group study took into consideration the work of the committee on economic, social and cultural rights, as well as the human rights treaty bodies. So I am delighted that we have here today, Seree Nonthasoot who is a member of the UN Committee on Economic, Social and Cultural Rights, to reflect on the findings of the study that are related to the right to health.

Speaker: Seree Nonthasoot, Member, Committee on Economic, Social and Cultural Rights:

As you are all aware that the International Covenant on Economic, Social, and Cultural Rights (ICESCR) is the guiding principle for the committee, and substantively if you look at the articles, they all pertain to the issues that we are considering today. the rights of detainees from drug related offences, from non discrim, to equal rights for men and women, the right to work and most importantly the right to health that you have asked me to speak on today.

Let me focus on the mandate of the committee like the committee has 3 mandates, other treaty bodies, most importantly, we monitor the implementation of the covenant through examination through periodic reports, currently we have 171 state parties. Then the issue, including observations and we undertake follow up procedures, also very important to us is a generation of general comments, at the moment we have 25 general comments, and number 26 will be produced on land and number 27 on sustainable development and they are in development at the moment. Last but not least we have an optional protocol, at the moment we have 26 state parties and we receive communications arising from that optional protocol. 

In terms of the right to health, the most important principle is enshrined in Article 12, and this principle is the highest attainable standard of physical and mental health. When we examine state parties implementation of this principle, we have issue General Comment Number 14, an issue showing intersectionality is very important and must be underscored. In our General Comment Number 14, as seen on the screen, paragraph 3, we say clearly that it is closely related to and dependent upon the realisation of other human rights. Particularly to food, housing, work, education, human dignity, life, non-discrimination, equaity, prohibition against torture very importatntioly. So the intersectionality is there, and we have also started discussions as well to update this particular general comment in view of the landscape change by the COVID-19 pandemic. I have to highlight the issue of these particular guidelines (International Guidelines on Human Rights and Drug Policy). This is very comprehensive and I have to commend the producers of these very important guidelines, and I think they touch on every aspect of related rights, so I will not touch on the details. I think it is a very good reference and should be disseminated most widely. What I would like to say is that the important issue when we talk about detention or arbitrary detention in particular is we must remember that its meaning is that arbitrariness is not to be equated with against the law, I think very importantly we must not neglect to examine the law itself, whether it is appropriate, where it is just, whether it is predictable or if it is passed in due law itself, not just the fact that people sometimes and very often in some countries are arbitrarily detained.

I think my last substantive issue and page here on this screen, when we talk about drug policy versus human capital and human rights, right now in many countries in the world, we equate drug users with criminals and public offenders and we must really examine this general perception. When we talk about criminalization, penalization and detention policies for low level crimes and the type of drug use that should not be criminalised in the first place, we must ask the question, has criminalization and detention of drug users served the purpose of drug controls. I think the view that must be adopted is that the multidimensional policies taking into consideration, gender, age, poverty, education which covers not just equality but also quality of education and awareness of people in the educational system, also into consideration is the rehabilitation and treatment of drug users, the justice system itself is suffering from arbitrary detention of drug users, from overcrowdedness to treatment of detainees and reservedisms, particularly as highlighted by previous speakers, the stigmatisation of drug users and their record while in detention. The environment as well we must not neglect, use of chemicals in illicit crop eradication and last but not least, indigenous peoples and their rights to use drugs to be recognized as well, and this is enshrined in the covenant as well.

Three questions I pose here should be points for consideration, number 1, how sustainable are drug related policies through the lens of the Sustainable Development Goals. I put here just some 9 related goals to drugs and detention. Number 2, the role of businesses must not be neglected either, the role of drug manufacturers and their supply chain in respecting human rights in accordance with the UN Guiding Principle on Businesses and Human Rights. And lastly, I think there should be a coherent/aligned response of UN Treaty Bodies and Special Mechanisms, and this was touched on by the next speaker.

I leave you with two points, at the moment, examples in Thailand have shown that despite COVID-19, the spread of methamphetamine has not subsided and has instead increased many-fold, At the moment, people in incarceration in Thailand have a number of more than 80% of the total pop in the correction system for drug related offences. This is very high compared with other countries, so we must also examine why people who use drugs end up in jail.

Thailand is the first Asian country to legalise medicinal cannabis and enter the global market. In Thailand there is a move to liberalise and legalise personal use of the medicinal herb of Kratom and Cannabis, grown in the south of the country, so you can see their is a dichotomy as on the one hand we are very stringent on methamphetamine, but on the other hand we are quite liberal when it comes to certain narcotic plants like Cannabis and Kratom. So I think that the next step for us is to really take into account the report by the working group and the guidelines produced by various orgs. I end my point here. Thank you very much.

Moderator: Ann Fordham, Executive Director, International Drug Policy Consortium: 

Thank you for sharing, and for providing updates on Thailand. So moving on, in 2018, the UN Common Position on Drug Policy was adopted, and in the report of the Working Group they recommended that states take into account this Common Position in formulating rights compliant drug policies. Shortly after the Working Group report was published, the UN Common Position on Incarceration was also published, this document is also squarely relevant in our discussion today. So i’m very pleased that we have today with us, Philipp Meissner, who is one of the co-authors on the Common Position on Incarceration. Philipp, please could you highlight the Common Position on Incarceration and it’s relevance to drug policy discussions.

Speaker: Philipp Meissner, Justice Section, UNODC:

Thank you very much Ann, and the previous speakers for the kind introduction, and for giving me the floor. As you have already mentioned, I will briefly zoom out of this issue of arbitrary detention in order to share with you how the UN have mobilised around the issue of incarceration at large. The UN system Common Position on Incarceration which you have mentioned was endorsed in April last year, was a crucial achievement in this regards as for the very first time, it provides a joint framework for the UN to assist member states in addressing prison and associated challenges within the criminal justice context, as it firmly positions prison and penal reform as an integral part of the SDGs agenda and recognizes prisoners explicitly as a particularly vulnerable and marginalised group, and certainly as the Common Position on Incarceration analyzes not only global prison challenges, but also describes in detail which areas the UN commits to supporting, nothing short of a paradigm shift to rethink our current reliance and often over-reliance on incarceration as well as its actual implementation. So in a nutshell, the Common Position on Incarceration identifies 3 thematic areas in which the UN intends to enhance its engagement, first of all to shift criminal justice policies stronger towards prevention, rehabilitation and alternatives to imprisonment, secondly to strengthen prison management and to improve prison conditions in line with international minimum standards such as the Nelson Mandela Rules certainly. And thirdly to advance the rehabilitation and social reintegration prospects of offenders. Time is limited during today’s event, so i’ll try to restrict myself to some pointers and as you have requested, those that are relevant to drug policies.

In the analytical part of the Common Position on Incarceration, ample attention is being drawn to the large number of prisoners convicted for drug related offences worldwide, with the latest data estimating to more than 2.5 million persons, many of whom are in fact low level offenders as Helen Clarke has mentioned in her introductory remarks that we are typically looking at the weakest link the chain as opposed to the leaders of the drug trade. So by doing so the Common Position on Incarceration truly reflects that drug policies in many countries not only are a significant driver of incarceration and prison overcrowding, but also often come along with quite a disproportionate impact on certain categories of offenders. We heard about women, and marginalised groups, persons with poor socio economic backgrounds etc. not even to talk about the lack of prison based treatment and rehabilitation programmes of more broadly health services in prisons. 

So in terms of recommended actions of the Common Position on Incarceration, throughout the documents highlight the need to ensure proportionate and individualised responses to offending , as well as a need for an enhanced use of alternatives to conviction or punishment in appropriate cases. Now obviously this applies to all categories of offenders, but it certainly also does apply to those who are charged with or are sentenced for minor drug related offences, including those related to personal consumption. So more specifically the Common Position on Incarceration redirects in this regards, that the phenomenon of drug use is primarily a public health concern that requires above all, evidence based and health centred responses in the community as opposed to a sort of default response of imprisonment. 

As for other crimes, drug policies, and sentencing practices, need to carefully take into account the nature, the gravity, and the circumstances of the offence as well as the specific background of the offender, the Common Position on Incarceration makes it very clear that the UN does not support the compulsory treatment of persons with drug use disorders which run counter to medical ethics and human rights standards, and that instead the UN will focus on increasing access to voluntary and evidence based drug treatment and other relevant health services at community level including in the form of non-custodial measures for offenders with drug use disorders in appropriate cases. 

Now all of the above obviously, while not neglecting that efforts are equally needed to strengthen treatment capacity in prison settings where they are typically insufficient, and where they are equally urgently needed, talking about the principle of equivalence of care as well as continuity of care so we need to bring together more closely the criminal justice and health sectors of government.

So as you can see from this brief, rushed through if I may so the Common Position on Incarceration clearly reflects content that is already embodied in International Conventions, UN Standards and norms, the UNGASS Outcome Document, previous UN Common Positions including the one on International Drug Control Policy as well as important points of the 2021 report of the Working Group on Arbitrary Detention. The added value of the Common Position on Incarceration being however that it will serve as a blueprint to incarcerated advocacy, inter-agency collaboration, cooperation with civil society as well as related technical assistance for the UN system at large. With this brief intervention, I would like to recommend to everybody to read through the full document, please have a look as it is a very detailed and elaborate Common Position on Incarceration. Many thanks for your kind attention.

Moderator: Ann Fordham, Executive Director, International Drug Policy Consortium:  

Thank you very much Philipp and thank you for sharing more details on the CPI, we certainly see it as an important advocacy document and we call on UNODC to further disseminate and highlight both of the common positions. Thank you very much for being here today. I am delighted to hand over to the EU Permanent Representative to the UN in Vienna, the EU is a co-sponsor, Ambassador Stephan Klement, who will provide some closing remarks before we move to an interactive dialogue.

Closing remarks: Ambassador Stephan Klement, EU Permanent Representative to the UN in Vienna:

Thank you very much. Dear participants, let me offer some additional comments for this quite extensive session. First of all in the Outcome Document of the UNGASS 2016, all member states of the UN made a commitment to protect the human rights in drug control. We as well have a particular committee to promote and implement effective practical measures to uphold the prohibition of arbitrary arrest, and detention in the context of drug control. During this side event we have already been hearing from distinguished UN experts and representatives of the human rights community. The recommendation of the study and experts views of implementation of these recommendations are of course critical for the realisation of human rights of PWUD as well as fulfil our commitments to the UNGASS 2016 and the 2019 Ministerial declaration. Let me emphasise at this point, several recommendations of the study, that are also in line with the new EU Drug Strategy 2021-2025. We are committed to ensure voluntary access to treatment and care services, that includes coordination and collaboration with other health and social support services, as set out in strategy as Priority 6.1, it creates a stigma and discrimination. In the study the Working Group provided a critical recommendation on decriminalize of drug use and advised to promptly release persons detained only for drug use or possession for personal use and review their convictions. The EU also supports the recommendation to immediately close state run as well as private compulsory drug detention centres. It is absolutely critical that persons confined against their will in drug treatment should be released immediately and drug dependent persons should seek voluntary, evidence based treatment in a community setting. Due to the limited time that is left, I will not go through all the recommendations of the study, however let me highlight a critical issue at this points, the role of civil society and community, in this side event we have been hearing from these orgs about meaningful roles they could play in the design, implementation, monitoring and evaluation of drug control policies. We must ensure that they can work without threat, criminalization of their activities without financial penalties or other forms of harassment. It is particularly important in our time of crises like the one we are now witnessing in Ukraine. Let me conclude, by emphasising that we must work together in formulating human rights compliant drug policies, including the prohibition of arbitrary detention, in line with all available tools including the International Guidelines on Human Rights and Drug Policy, as recommended by the Working Group. Thank you very much for your attention.

Moderator: Ann Fordham, Executive Director, International Drug Policy Consortium: 

Thank you very much Ambassador and thank you for your leadership in Vienna for human rights and the participation of civil society. Before we move to the interactive dialogue we will just be showing a short 3-minute video from the office of the High Commissioner to Human Rights, one of the co-organizers of this event on the topic of arbitrary detention. The video detailed the issues that arbitrary detention leads to and the human rights violations associated.

We now move to interactive dialogue and we already have several interventions from co-sponsors to this event, so I will give them the floor first and I ask them to keep their interventions to 2 minutes or less. First we will turn to his excellency, Philbert Johnson who is the Ambassador to Ghana in Vienna.

Philbert Johnson, Ambassador to Ghana in Vienna:

Thank you for giving Ghana the floor to make this brief intervention. First let me thank the office of the High Commission on Human Rights for inviting the Government of Ghana to be part of this conversation. We appreciate the opportunity to add our voice to the numerous calls on the need to align drug control mechanisms with human rights obligations. The health and welfare of mankind is the main objective of the 1961 Convention on Narcotic Drugs, unfortunately current drug policies in many african countries may not achieve this purpose. Drug trafficking and drug consumption is on the rise in Africa, the projections by UNODC is that in Africa drug use will continue to rise significantly yet there are few, or no treatment or harm reduction services available in most countries. At the same time the drug control policies make access to essential medication for pain management in Africa highly restricted. Consequently there is a need for current drug policies in the region to be reformed to encourage prevention and harm reduction. We are all warned to protect our families, friends and loved ones from the harms of drugs, but if they develop a drug problem they should be viewed as a patient in need of health services and not be behind bars. Currently drug policies are not achieving that goal to protect the health and wellbeing of mankind. We therefore need to focus on the objectives of the convention by taking bold action to enable governments and health authorities to counter, reduce and help the harms that drugs cause. I would like to make three suggestions. First we must ensure that our human rights obligations and our quests to address the global drug issue are not treated in silos, drugs are a global problem but need a global solution. Secondly, we must make treatment centres available especially in low and middle income countries. Lastly, we must decriminalise drug use as these measures do ont work and put many people in prison where their drug use may worsen. Finally, drugs are infinitely more dangerous when produced and sold by criminals, as they do not worry about safety measures, it is therefore time for a more human rights and health based approach to drugs, distinguished ladies and gents I thank you for allowing me to share some thoughts on the issue of arbitrary detention in the name of drug control.

The Advisor to the National Human Rights Commission of Thailand:

Thank you for inviting us to participate. I would like to split my intervention into two parts, the first part on the transition from criminalization to rights based policy. The second part is my comment to the recommendations of the Common Position on Arbitrary Detention.

For the first part, I note that Thailands drug policies are very much under the influence of the zero tolerance for criminalization for a long time. Thailand also operated the War on Drugs through 2003 and 2006 and also a lot of the traffickers and drugs were seized in that time and people arrested, but after the ‘War on Drugs’, there was clearly a negative impact on the country. We have got a lot of negative criticism and after that we tried to review our policy by the collaboration of international orgs, namely, IDPC, UNDP and UNODC. We tried to come up with the harm reduction first, we made it statutory as the national policy first and after that we prepared the strategies and approach in order to make the change from criminalization to a human rights approach. 

We tried to amend the existing drug policies and laws 5 years ago by inviting scholars and experienced people from various countries and tried to learn from other countries’ experiences, especially from Central America as at that time there were a lot of female inmates in the prison, we have a similar scenario in Thailand. Then we learned that it should be a joint effort between the relevant body, the government and especially for the support of the CSOs, this started to help the leading agencies. Other agencies like human rights agencies, academies, and courts also helped and we made an operational plan with a clear strategy and step-by-step approach by creating awareness among the target groups and then we disseminated this information.The Senior Minister of Thailand, attended the UNGASS 2016 and we learned alot from that meeting especially about human rights based drug policies. After we came back from UNGASS we started to review the drug policies and law, we had the working group and we spent a couple of years before we could amend the law, after that we came up with the making of new drug policies. And this was adopted last year, so it took time to achieve drug policies to be more human rights based.

When I read the 16 recommendations from the Common Position, which I think is very practical, I thought that you should have a leading agency and a strategy and approach, and a technical component to strengthen the capacity of the key agencies and the network and then we can move forward these recommendations into reality.

Mr. Anthony Okechukwu, the Executive Secretary of the National Human Rights Commission of Nigeria:

Thank you very much, I would like to extend our appreciation to distinguished panellists and the Office of the High Commissioner for Human Rights and co-sponsors of this event and also the Working Group. From the standpoint of the National Human Rights Commission, I would like to add the following points as necessary measures to combat arbitrary detention, strengthening the protective and promotional mandate of human rights institutions through increasing oversight and watchdog functions on drug and law enforcement agencies through monitoring of the detention facilities. 

Currently the National Human Rights Commission is embarking on an audit on all detention facilities by the drug agency in the country. secondly by developing normative frameworks and principles including guidelines and advisories to law and drug enforcement agencies, and the judiciary. We have to embark on increased collaboration on the national human rights institutions and civil society organizations and the support groups of drug users for the following reasons; for effective advocacy for human rights standards and other legal protection for detainees; calling attention to the social and economic vulnerabilities and inequalities which are key drivers in some instances to drug use; enhance free legal and pro bono services to suspects on detention and trial; decriminalising drug possession for personal use, it will also lead to the decongestion of detention facilities reducing running costs, and reduce exposure to COVID-19 and other health challenges. Thank you once more for the opportunity to participate and co-sponsor this programme.

The Director of the Protection Cluster of the Commission of Human rights of the Philippines:

In the Philippines, the guidelines from the Dangerous Drug Board established community based treatment and rehabilitation services are already in accordance with that provided by the UNODC, though it must be admitted that there are issues in actual implementation. However, the voluntary nature of drug treatment must be placed in the context of Philippine laws which distinguish for those who test positive for use of drugs and those who are in possession of drugs. The former is given access to rehabilitation but the latter are subject to penalties such as life imprisonment including up to 10 million pesos. 

Local laws highlight the prevailing national policies to pursue an intensive and unrelenting campaign against trafficking and the use of dangerous drugs. In a 2020 UNODC report, more than 45 individuals were arrested while only 2000 were admitted for treatment and rehabilitation. Through civil society engagement, we know that NGOs,activists and human rights defenders run the risk of harassment for their activities in the drug policy field. Meanwhile the Commission on Human Rights as the interim national preventive mechanism, has also intiated and implemented measures to prevent torture and ill-treatment in detention facilities, but potential for violation still remains high. With the prevailing state policies, the prospect of decriminalization and the primacy of a public health perspective remain a distant goal. The incumbent administration has explicitly rejected this proposal, existing drug laws have little support for revision, and drug users are still stigmatised. To fully comply with the recommendations in the study, a radical and comprehensive overhaul of drug policies is required, which involves drastic changes in legislation, structural reform and a massive campaign to change government perspectives on the drug problem.

Tríona Lenihan, Policy and International Advocacy from Penal Reform International:

Want to welcome the study by the Working Group and thank all our colleagues at the office of the high commissioner on human rights and all co-sponsors of this event. Penal Reform International continues to support the Working Group and dissemination and implementation of the study’s recommendations in all of our work at national and international level, and the key role of civil society has already been outlined by some of the speakers today, but we are also interested in hearing from Elina Steinerte how the Working Group see’s civil society’s role in reform work to further the implementation of the recommendations set out in the study. If you have any practical suggestions of how we can most effectively support and collaborate with  both the UN mechanisms and national authorities towards human rights based approaches to drug policy. Thank you.

The Project Coordinator of the Network of Women who use Drugs in Ukraine:

I would like to emphasise very quickly that the War that Russia has waged in Ukraine has shown us all the weaknesses of drug policy and measures to protect the rights of PWUD. In this time, paralegals from two national networks in Ukraine have repeatedly recorded illegal detentions of PWUD, illegal searches, and illegal physical and psychological violence. Moreover, patients on the OST programme who go home after receiving the legal drug often are being detained. I can list the data collected by paralegals for a long time, but I want to emphasise the most important thing, during the war, normalisation of such detentions and dehumanisation of PWUD in the eyes of society leads to terrible consequences. Violence against people who only look like they are searching for drugs on the street, or people who stash drug packages further distribution is not currently considered a crime. Moreover, people automatically think those who search for drugs on the streets are an enemy, thus these people are gaining a moral right to violence. We call for street abidance of human rights and an end to legal detention of PWUD, we urge not to tolerate the criminalization of people solely on the basis of their diagnoses. Thank you colleagues.

Moderator: Ann Fordham, Executive Director, International Drug Policy Consortium: 

Thank you for being with us today, we hope you are in a safe location and we are in solidarity with the people of Ukraine. I will now ask Elina to respond to the comments and questions that we have received during the discussion so far.

Elina Steinerte, Chair, Working Group on Arbitrary Detention:

Thank you very much for the very valuable contributions. I always feel difficult at these events because what the working group does in comparison to the testimonies of those who have spoken today in my humble opinion is actually very little, but I do understand that it is very important to have this study and it is also very important now from the perspective of the Working Group that at no point in time this is considered to be the done deal. The Working Group considers this only the first step, this is the time when the real work starts, and with this in mind, the Working Group is very much looking forward to any stakeholders and approaches and stands ready to assist anyone  who would like to work with the Working Group to engage with us to further the recommendations. The events in December when the Working Group was unable to present its study to the CND in Vienna and me being here today and able to present it today is a very important testament to how important it is that human rights are entrenched in drug policies throughout and it would not be possible for me to be here without all of you, the states, the civil society orgs, the UN agencies. So I thank you, from the bottom of my heart as the Chair of the Working Group on Arbitrary Detention, but also personally as a human rights lawyer, it has been a very important day for me today. I thank you for this event and sincerely invite all of you, the states, CSOs, the individuals, UN agencies to come to the Working Group to involve us in your work so we can all achieve the recommendations made in this study.

Moderator: Ann Fordham, Executive Director, International Drug Policy Consortium: 

We have the final word from Zaved Mahmood, from the Office of the High Commissioner on Human Rights, who wishes to say a short few notes in closing.

Zaved Mahmood, Office of the High Commissioner on Human Rights:

Thank you very much to all co-organizers and also to especially thank Elina Steinerte, for coming to Vienna from Geneva. I hope we will take back from this meeting that we have a lot of things to do to implement this report. On behalf of the Office of the High Commissioner on Human Rights and all the colleagues that organised the event, I would like to thank you. We hope to reconvene again on this report to go through it in a detailed discussion about each recommendation and how we can move forward with the support of member states, civil society and the working group. Wish you all a good morning, afternoon, and evening. 

Moderator: Ann Fordham, Executive Director, International Drug Policy Consortium:

Thank you to all who joined us, at some point we had over 100 attendees which must be a record, hope to see us all back in vienna next year. Thank you so much to all our panellists also. 

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