Background Information Roundtable 3 on human rights (UNGASS)

The drug control system aims at improving the health and welfare of humankind, in full compliance with human rights, based on the recognition that all members of the human family have equal and inherent dignity. For this objective to be achieved, measures taken by States must not be discriminatory or conducive to the stigmatization of persons, especially those with drug use disorders. Such measures should instead, as a matter of priority, facilitate the access of these persons to relevant social and health care services available to the broader population, in conformity with the international drug control conventions and applicable human rights obligations, with special protection afforded to more vulnerable and therefore specially affected groups. A report of the United Nations High Commissioner for Human Rights recently highlighted that renewed efforts are needed to address the impact of the world drug problem on the enjoyment of human rights

The international drug control conventions seek to limit the use of controlled narcotic drugs and psychotropic substances to medical and scientific purposes and pari passu seek to ensure that those drugs, which are useful to the health and well-being of the population, are available for such purposes. Improving access to controlled drugs for medical purposes, including for the relief of pain, across the world appears consistent with the right to the highest attainable standard of health and will require more focused and determined attention of the international community

Several States have established programmes aimed at reducing the adverse health and social consequences associated with illicit drug use. Furthermore, Member States have expressed the need to prevent and treat drug overdoses, including with the potential use of opioid receptor antagonists such as naloxone and other measures based on scientific evidence. In an environment conducive to fostering access to appropriate health care services, and as part of comprehensive public health policies and strategies, many of these programmes are recognized to effectively address and in many cases prevent the transmission of blood-borne diseases, including HIV, tuberculosis, hepatitis C, and other infections related to drug injections and overdose

State interventions by means of criminal law measures also need to be informed by a health-centered approach, in line with comprehensive public policies. Every State is required to enable its competent organs to prosecute and punish drug-related offences with penalties of proportionate degrees of severity, in accordance with domestic law, and in line with the general principle that penalties shall be proportionate to the offence. The international normative framework is also relevant in ensuring that people in contact with the criminal justice system for drug offences have access to justice and legal aid, and in guiding police procedures, notably in dealing with persons who illicitly use drugs, in ensuring the application of policies of non-discrimination and the removal of obstacles to the access of persons who illicitly use drugs to social and health services, as well as in creating a socially safe environment. Persons who illicitly use drugs or suffer from drug use disorders, who are in contact with the criminal justice system only because of that circumstance or condition, should be provided with treatment and care rather than with punishment

In particular, the authorities investigating, prosecuting or adjudicating criminal cases should be empowered to discharge the offender in appropriate circumstances and to impose non-custodial measures for minor cases. This entails the need for a comprehensive national normative framework to be in place and for relevant public officials to be sensitized and trained about the application of non-custodial measures. The Tokyo Rules foresee that in appropriate cases, various schemes such as case-work, group therapy, residential programmes and specialized treatment, conducted by professionals with suitable training and practical experience, should be among the range of non-custodial measures available to effectively meet the needs of offenders. These Rules also foresee that the failure of a non-custodial measure should not automatically lead to the imposition of a custodial measure. The increased application of non-custodial measures as alternatives to conviction or punishment, to persons affected by drug use disorders who have committed offences, requires that public health and justice authorities actively and routinely collaborate with a view to promoting the rehabilitation and reintegration into society of those persons

When the criminal justice system comes into play, offenders with drug use disorders retain their right to access the services described above. Such services may be provided as a complete alternative to conviction or to punishment, both for personal consumption-related offences and “appropriate cases of a minor nature”. These services can also not be denied to those imprisoned for more serious drug offences or other types of offences, who should enjoy the same standards of health care that are available in the community, and should receive continuity of treatment and care, including for HIV and drug dependence

In line with international law and relevant standards and norms, United Nations agencies encourage States parties to adopt a health and rule of law centered approach for dealing with the world drug problem, which should include tailoring their public policies to the goal of improving public health and the safety of all individuals, with particular attention to interventions addressed to persons who illicitly use drugs and persons with drug use disorders. The role of criminal justice institutions in this regard should be considered and its collaboration with its health counterparts increased, including by resorting more frequently to non-custodial measures and alternatives to punishment or conviction in drug-related offences. States should also consider measures to ensure that significant distinctions exist between penalties for major players in drug trafficking, and small players, such as women being used as couriers; and judges be allowed to use discretion in sentencing, to foster rehabilitation and social reintegration, as appropriate and in consistency with the international drug control conventions

Women who inject drugs also face a range of gender-specific barriers to accessing HIV-related services; research, services, guidelines, training programmes and surveillance concerning people who inject drugs remain overwhelmingly gender neutral or male-focused

This inequality also manifests itself in prison settings: although women only constitute 6.8 per cent of the world’s prisoners, the female prison population has increased by 50% since 2000, while the equivalent figure for the male prison population is 18%.26 A large number of women offenders worldwide are imprisoned for minor drug related offences, are recruited by drug trafficking criminal groups to act as drug couriers to smuggle drugs across borders or to perform low level, but highrisk tasks. These women are usually minor players and often become involved in drug trafficking as a result of manipulation, coercion, poverty or their own drug use disorder. The Bangkok Rules specifically refer to substance abuse treatment programmes and recommend that the provision of gender-sensitive, trauma-informed, women-only substance abuse treatment programmes in the community and that women’s access to such treatment should be improved, for crime prevention as well as for diversion and alternative sentencing purposes

Furthermore, the access of children who inject drugs to effective HIV prevention services is challenging considering the high levels of stigma, fear and the age-related barriers and parent/guardian consent requirements that impede access to HIV testing, to needle and syringe programmes or to HIV and drug dependence treatment and care. In countries where such barriers do not exist HIV services are not youth friendly and not tailored to respond to the needs of young people

Within the justice system, children are vulnerable to become victims of crime and to be involved in the commission of crimes themselves, while still in a formative age. Frequently, they are exploited by gangs and organized criminal groups in the illicit drug market. In many countries, the majority of children in detention either have substance abuse problems or have committed drug-related offences. Overreliance on deprivation of children’s liberty and insufficient application of drug treatment programmes or other alternatives to detention are common challenges, despite the existence of an international obligation that deprivation of liberty should be a measure of last resort and be applied only for the shortest appropriate period of time

The problems faced by vulnerable groups are accentuated in poor environments, making the presence of State institutions in all dimensions, notably social, justice and health services, respectful of human rights and the rule of law, and the offer of sustainable livelihoods, indispensable in the whole extent of a State’s territory. For example, rural communities and indigenous peoples are often disproportionately affected by measures to prevent illicit cultivation and eradication of plants containing narcotic drugs and psychotropic substances, thus requiring particular attention to ensure compliance with human rights law and sensitivity to issues such as traditional licit uses or the protection of the environment. Issues related to health, drug and alcohol abuse should be factors considered in the development of crime prevention action plans with the involvement of a range of community actors. The recognition of the community as a locus and resource for many relevant interventions rooted on evidence, including community-based drug dependence treatment and care, including HIV prevention and treatment, is essential for the creation of a non-stigmatizing as well as supportive, protective and cohesive environment