Drug control, crime prevention and criminal justice: A human rights perspective (E/CN.7/2010/CRP.6–E/CN.15/2010/CRP.1)
20. Where the establishment of criminal offences is required by other bodies of international law, such as the international drug conventions, human rights law still continues to apply. The International Narcotics Control Board recognizes that the obligation to establish certain criminal offences is subject to each State party’s constitutional principles and to basic legal concepts, including human rights.34
21. Whether or not an action is defined as a criminal offence in law is not however the only issue at hand. In some countries, administrative (non-criminal) penalties may be as severe, if not more severe, than under criminal law. International human rights law does not set out specifically what penalty should be applied for what crime. Nonetheless, the principle that the severity of penalties must not be disproportionate to the criminal offence is found in a wide body of human rights- related standards.35 This principle includes the notions that imprisonment should be used as a penalty of last resort, and that the choice between penalties should take into consideration the likelihood of the offender being rehabilitated.36
22. While the principle applies equally to adults and to children, the rule has seen particular development in the context of children in conflict with the law. The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”), for example, encompass the “principle of proportionality” whereby any reaction to juvenile offenders shall always be in proportion to the circumstances of both the offender and the offence.37 In particular, the imprisonment of a child shall be used only as a measure of last resort and for the shortest appropriate period of time.38
23. In the context of drug laws and sentencing, the drug-control conventions generally require parties to establish a wide range of drug-related activities as criminal offences under their domestic law. Nonetheless, they permit parties to respond to them proportionally, including through alternatives to conviction or punishment for offences of a minor nature.39 Serious offences, such as trafficking in illicit drugs, must be dealt with more severely and extensively than offences such as possession of drugs for personal use. In this respect, it is clear that the use of non-custodial measures and treatment programmes for offences involving possession for personal use of drugs offer a more proportionate response and the more effective administration of justice.40 Moreover, the criminal justice response should not be considered proportionate if it results in the denial of another individual human right. Where imprisonment for possession/use offences precludes access to appropriate drug-dependence treatment, for example, this may constitute a denial of the right to the highest attainable standard of health or even the right to freedom from cruel, inhuman or degrading treatment, rendering the criminal justice response de facto disproportionate.41
24. Proportionality and strict due process in drug laws are also important weapons in the fight against corruption. Where severe sentences for less serious offences such as personal possession can be passed on a summary or administrative basis, the door may be opened to acts of corruption by individual law enforcement officers, border police or criminal justice officials.
41. Accordingly, the right to health calls for access to measures such as counselling, advice, clean needles and syringes, and drug dependence psychosocial and pharmacological treatment, including, where appropriate, opioid-agonists therapy (or long lasting opioid-agonists). Such requirements are fully compatible with those of the international drug control conventions.
47. The World Health Organization estimates that each year tens of millions of patients, including 5.5 million cancer and 1 million AIDS patients suffer moderate to severe pain without adequate treatment. The existence of restrictive laws and insufficient training of health-care professionals plays a significant role in the under-utilization of controlled medicines. From a human rights perspective, governments have an obligation to provide essential medicines, including opioid analgesics, as part of their minimum core obligations under the right to health.