INCB Annual Report for 2007

The Board is of the opinion that the nature and severity of penalties and sanctions for enforcement are useful in assessing whether the principle of proportionality is met. Full compliance with the principle of proportionality implies mutual respect for national sovereignty, for the various constitutional and other fundamental principles of domestic law – practice, judgements and procedures – and for the rich diversity of peoples, cultures, customs and values served by those different legal systems.

4. Some of the differences in national approaches to dealing with offenders, protecting public safety and repairing any harm caused to victims and the community flow from the different legal systems of the States parties to the conventions. They in turn reflect underlying differences concerning, for example: (a) how best to deal with unlawful behaviour by offenders; (b) how best to promote a sense of responsibility on the part of offenders and their acknowledgement of the harm they have done to victims and the community; (c) how best to deter them and others from offending in the future; (d) what constitutes “fair punishment”; (e) when and in what circumstances to separate offenders from society; and (f) how best to rehabilitate them.

7. Transposing the international drug control conventions into domestic law is subject to the internationally recognized principle of proportionality. The principle requires a State’s response to anything that may harm peace, order or good governance to be proportionate. In a narrower, criminal justice sense, the principle permits punishment as an acceptable response to crime, provided that it is not disproportionate to the seriousness of the crime. Variants of the broad principle are often enshrined in States’ constitutions, with specific rules set out in more detailed national law. International and regional human rights instruments3 and crime prevention and criminal justice instruments often develop or set the standards.

9. Whether or not a State’s response to drug-related offences is proportionate depends in turn on how its legislative, judicial and executive arms of government respond in both law and practice. For example:

(a) Is the particular response necessary?

(b) To what extent can the response result in the achievement of the desired objectives?

(c) Does the response legitimately go beyond what is needed?

(d) Does the response comply with internationally accepted norms concerning the rule of law?

(e) When the offences have international aspects, is there effective international casework cooperation between the regulatory, law enforcement, prosecution and judicial services of all the countries concerned, for example, in obtaining relevant intelligence and evidence, tracing and ultimately confiscating criminal wealth and returning fugitives of justice? If the answer to the above questions is no, justice may not be done, making the response to the offending manifestly disproportionate.

10. In the Board’s view, whether or not the principle of proportionality is satisfied in any State’s drug- related casework depends on whether or not the cases are dealt with fully in accordance with the conventions and the rule of law.

21. As a result, most societies now expect that anyone accused of a crime will be dealt with proportionately and in full compliance with the rule of law and human rights standards. To that end, appeal courts are increasingly correcting injustice and curbing excessive punishment in most countries. More authorities now prioritize their casework so that not only street offenders, but also crime bosses whose hands never touch the trafficked drugs are brought to justice. More States enable their authorities to apply a range of custodial and non-custodial sanctions for drug-related offences to fit the particular crime and the particular offender, rather than operate on the basis of “one size fits all”. Those sanctions may be correctional, restorative or both.

30. If it is a case of a minor nature or a case involving an offence related to personal use, it should be either prosecuted or conditionally disposed of using alternatives to formal trial and adjudication. Any discretionary decision of whether or not to prosecute should be governed by a legal or regulatory framework that guides the exercise of discretion to ensure fairness and consistency, so that all people are equal before the law and are treated equally when suspected of committing a criminal offence.

38. Due respect for universal human rights, human duties and the rule of law is important for effective implementation of the international drug control conventions. Non-respect for them can prejudice the ability of the criminal justice system to enforce the law, can lead to discriminatory disproportionate responses to drug offending and can undermine the conventions

208. The Board has brought to the attention of the international community the fact that the levels of consumption of opioid analgesics for the treatment of moderate to severe pain were low in a number of countries.

213. The Board encourages all Governments and the international organizations concerned, such as the United Nations Office on Drugs and Crime (UNODC), to cooperate with WHO in the implementation of the programme, with a view to promoting rational use of opioid analgesics by health-care professionals. The Board calls on Governments to provide resources to WHO for the implementation of the programme.