Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development (A/HRC/10/44)

66. The Special Rapporteur is concerned that, in some countries, drug offences are punishable by the death penalty and consequently convicts are held on death row or sentenced to life-imprisonment. The Human Rights Committee, in its general comment No. 6 on the right to life, clearly stated that, under article 6 (2), States were obliged to restrict the application of the death penalty to the “most serious crimes”, which does not include drug-related crimes. This position has been reiterated by the Special Rapporteur on extrajudicial, summary or arbitrary executions. In the Special Rapporteur on torture’s view, drug offences do not meet the threshold of most serious crimes. Therefore, the imposition of the death penalty on drug offenders amounts to a violation of the right to life, discriminatory treatment and possibly, as stated above, also their right to human dignity.

68. Worldwide, millions of people continue to suffer from often severe pain, although already in 1961, the Single Convention, in its preamble, recognized that “the medical use of narcotic drugs continues to be indispensable for the relief of pain and suffering and that adequate provision must be made to ensure the availability of narcotic drugs for such purposes”, and its articles 4 and 21 further referred to the need for drugs to be available for medical purposes and the treatment of the sick. (…)

69. However, access to narcotic drugs is still severely restricted and sometimes unavailable, in particular in the global South. (…)

70. Apart from poverty and lack of access to medical care in general, this appears to be partly caused by strict narcotic drug control laws and practices devised at the national level, sometimes underpinned by international drug control policies, at least in the past.

71. With regard to human rights and drug policies, the Special Rapporteur wishes to recall that, from a human rights perspective, drug dependence should be treated like any other health-care condition. Consequently, he would like to reiterate that denial of medical treatment and/or absence of access to medical care in custodial situations may constitute cruel, inhuman or degrading treatment or punishment and is therefore prohibited under international human rights law. Equally, subjecting persons to treatment or testing without their consent may constitute a violation of the right to physical integrity. He would also like to stress that, in this regard, States have a positive obligation to ensure the same access to prevention and treatment in places of detention as outside.

72. Similarly, the Special Rapporteur is of the opinion that the de facto denial of access to pain relief, if it causes severe pain and suffering, constitutes cruel, inhuman or degrading treatment or punishment.

73. To address the many tensions between the current punitive approach to drug control and international human rights obligations, including the prohibition of torture and cruel, inhuman and degrading treatment, the Special Rapporteur calls on the Human Rights Council to take up the question of drug policies in the light of international obligations in the area of human rights at one of its future sessions.

74. Regarding the review process, decided by the General Assembly at its special session in 1998, to be held in Vienna in March 2009, the Special Rapporteur recommends that States and the relevant United Nations agencies reassess their policies, bearing in mind the following points:

(a) States should ensure that their legal frameworks governing drug dependence treatment and rehabilitation services are in full compliance with international human rights norms;

(b) States have an obligation to ensure that drug dependence treatment as well as HIV/hepatitis C prevention and treatment are accessible in all places of detention and that drug dependence treatment is not restricted on the basis of any kind of discrimination;

(c) Needle and syringe programmes in detention should be used to reduce the risk of infection with HIV/AIDS; if injecting drug users undergo forcible testing, it should be carried out with full respect of their dignity;

(d) States should refrain from using capital punishment in relation to drug-related offences and avoid discriminatory treatment of drug offenders, such as solitary confinement;

(e) Given that lack of access to pain treatment and opioid analgesics for patients in need might amount to cruel, inhuman and degrading treatment, all measures should be taken to ensure full access and to overcome current regulatory, educational and attitudinal obstacles to ensure full access to palliative care.