INCB Side Event on “The need for proportionality: State responses to drug-related offences”

3. The INCB has repeatedly called upon States to give due regard to the principle of proportionality in the implementation of criminal justice policy in their efforts to address drug-related crime. In 2007, we dedicated the thematic chapter of our Annual Report to the topic of proportionality. 1 Already then, in 2007, the Board underlined that “disproportionate responses undermine the aims of the conventions and undermine the rule of law”. And the Board called on Governments “to comprehensively review the responses by their legislative, judicial and executive arms of government to drugrelated offences, in order to ensure that they are proportionate”.

4. The principle of proportionality, in the context of drug-related offences, is a key aspect of a sound and effective drug policy. In the context of criminal justice, the principle requires States to respond to illicit activity in a manner that does not exceed the gravity of the offence. Punishment for criminal offences has to be adequate and directly proportionate to the seriousness of the crime. While the choice of legislative and policy measures to address drug-related crime, including the determination of sanctions, remain the prerogative of States, the international drug control treaties require that these sanctions should take into account the gravity of the offence and the culpability of the offender. This requirement is contained in all three of the international drug conventions.2

5. Of course, the treaties provide for criminal responses to drug-related offences such as imprisonment and other deprivations of liberty, but these do not constitute the only measures available to States in addressing and redressing drug-related offences. Under the treaties, only “serious” offences should be liable to the penalty of incarceration, deprivation of liberty, pecuniary sanctions or confiscation. Offences of a “minor” nature or lesser gravity need not necessarily be subject to punitive criminal sanctions. In appropriate cases of minor nature, States can provide, as alternatives to conviction or punishment, measures such as education, rehabilitation or social reintegration. When the offender is affected by drug abuse or drug dependence,3 they should provide treatment and aftercare. In cases of the possession, cultivation or purchase of drugs for personal consumption, the conventions afford even a wider discretion to Parties. 6. Non-custodial responses do not only alleviate the burden of incarceration on national prison systems. They also contribute to a more effective and long-term rehabilitation of persons affected by drug abuse and drug dependence by affording treatment opportunities over punishment, allowing them to work towards a life void of drug dependence and rid of the social stigma associated with imprisonment.

8. On the other hand, there are still States that retain capital punishment for drug-related offences. The Board urges these States to consider the abolition of the death penalty for drug-related offences because in our view this kind of punishment is not/never proportionate.

9. Moreover, the Board reiterates that the extrajudicial targeting of suspected drug-related criminality constitutes a serious breach of the legal obligations to which the States are held by the drug control treaties and by the corpus of international legal instruments to which they have adhered. The treaties require criminal justice responses to drug-related criminality, which include internationally-recognized due process standards and which reject extrajudicial sanctions of whatever nature. We call upon all Governments concerned to put an immediate stop to such actions.

12. An effective drug control policy must rely on a balanced, comprehensive and integrated approach, where health and welfare are at the core of drug control policy, where human rights are promoted and the principle of proportionality is applied.

13. The Board wishes to reiterate its continued support of efforts by States, within the framework established by the conventions, to develop drug policies which contribute to furthering the health and welfare of mankind through the adoption of humane and proportionate drug policy. These developments do not occur in violation or in spite of the conventions but in application thereof. In adopting alternatives to conviction and punishment for drug-related offences of a lesser gravity, such as possession for personal use and other minor offences, States are simply availing themselves of the discretion they have under the conventions, subject to some key principles which they themselves have negotiated.