1. Introduction
1.1. Procedure
1. On 8 October 2018, the motion
for a resolution on “Drug policy and human rights in Europe: a baseline study”
(
Doc. 14587) was referred to the Committee on Legal Affairs and
Human Rights (the committee) for report and the Committee on Social
Affairs, Health and Sustainable Development (the Social Affairs Committee)
for opinion. I was appointed rapporteur by the committee at its
meeting in Paris on 13 December 2018.
2. A hearing was held on 4 March 2019 with the participation
of Mr Damon Barrett, Director of the International Centre on Human
Rights and Drug Policy (University of Essex, United Kingdom), Lecturer
at the Section for Epidemiology and Social Medicine (University
of Gothenburg, Sweden) and Expert for the Council of Europe Co-operation
Group to Combat Drug Abuse and Illicit Trafficking in Drugs (Pompidou
Group), Ms Naomi Burke-Shyne, Executive Director, Harm Reduction
International (London) and Mr Zaved Mahmood, Human Rights and Drug
Policy Advisor, Office of the United Nations High Commissioner for
Human Rights (OHCHR, Geneva, Switzerland).
3. I carried out a fact-finding visit to a drug consumption room
in Strasbourg on 28 June 2019 and shared with committee members
a video of interviews of people who used the facility. I take this
opportunity to thank its staff and the city of Strasbourg for their
valuable cooperation. I also conducted fact-finding missions in
my parliamentary constituency and surrounding areas to meet local
authorities, professionals, local organisations, charities, and
people who use drugs. I sent a questionnaire to national parliaments
to examine policies across Europe and I thank the 27 participating
member States and one observer State (Israel) for their helpful feedback.
4. I take this opportunity to thank all experts, and in particular
the Pompidou Group’s Secretariat and Amnesty International, who
kindly supported the preparation of this report.
1.2. Issues
at stake
5. Today’s challenges around societal
problems associated with psychoactive substances (hereafter referred
to as “drugs”) involve a multifaceted and complex policy area, including
laws, regulations, strategies and funding priorities. Over the years,
countries in Europe and beyond have faced evolving patterns of drug use,
drug related harm and drug related crime. These can be closely interconnected
with the effects of wars, conflicts, terrorism, trafficking in human
beings, economic/financial instability and the criminal misuse of modern
information and communication technologies (such as encrypted networks)
they are confronted with. According to the European Monitoring Centre
for Drugs and Drug Addiction (EMCDDA)’s
2019
European Drug Report (EDR), drugs are widely available and in some areas
even increasing in availability. Polydrug consumption is common
and individual patterns of use range from experimental to habitual
and dependent consumption. According to the UN
2019 World
Drug Report (WDR), “in 2017, an estimated 271 million people, or
5.5% of the global population aged 15–64, had used drugs”.
6. This so-called “drug problem” has generated severe harm and
risks for the health and safety of those concerned and societies
in general. Individual vulnerabilities and the social context in
which drugs are consumed often aggravate the situation. According
to the
2019 WDR, some 35 million people globally suffer from drug use
disorders which require treatment. More than 11 million people worldwide
inject drugs. Among those, roughly one in eight people live with
human immunodeficiency viruses (HIV). 5.6 million live with hepatitis
C. More than half a million people worldwide died as a result of
drug use in 2017. More than half of those deaths were the result
of untreated hepatitis C. In Europe, an ageing cohort of opioid
users remains a health concern; cocaine users also increasingly
seek treatment, most often for polydrug use.
7. Until recently, there was a global understanding that the
best way to deal with drug-related issues was to focus on reducing,
and ultimately eliminating, the illicit production, supply and use
of narcotic and psychoactive substances. The Social Affairs Committee
noted
in 2015 that “drug-control efforts […] focusing on repression
have been responsible for generating large-scale human rights abuses,
including the violation of the right to health, and disastrous consequences
in terms of public health.”
For
instance, repression may lead to contaminated and more harmful drugs
of unknown quality being sold and riskier methods of drug use being
sought. History reveals indeed that there has never been any society
without psychoactive drugs, begging the question whether a world
free of drugs is a realistic aim. Strong evidence also suggests
that the consequences of purely repressive policies include also
death, violence, ill-treatment, discrimination, stigmatisation,
marginalisation, disproportionate sentencing and prison overcrowding.
8. The principle of subsidiarity reflected in international human
rights instruments, including the European Convention on Human Rights
(the Convention), gives Council of Europe member States a significant
margin of appreciation for drug policy development – and there is
evidently a wide array of possible responses based on national,
cultural and economic contexts. Recent developments in drug policy
have put increasing emphasis on a comprehensive, integrated, balanced,
and scientific evidence-based approach which closely intersects public
health, socio-economic, human rights, sustainable development and
decriminalisation governments responsibilities.
1.3. Objectives
for the report
9. This report describes, through
concrete examples, how human rights’ standards should form an integral part
of drug policy development in member States. While measuring the
success and coherence of drug policies is not an easy task, the
report advocates for the adoption of evaluation mechanisms and indicators tailored
to a new understanding of drugs and related harm. Such indicators
should provide comprehensive guidance to member States taking on
the challenge to review the impact of their drug policies on individuals and
societies.
2. Global shift towards mainstreaming
human rights into drug policies
2.1. Evolving
priorities for the global drug control regime
10. The current globally applicable
legal framework on drug control includes three
United
Nations (UN) Conventions: the Single Convention on Narcotic Drugs (1961, as amended
by the 1972 Protocol), the Convention on Psychotropic Substances
(1971) and the Convention against Illicit Traffic in Narcotic Drugs
and Psychotropic Substances (1988). This legal framework for the
global “war on drugs” in theory provides “sufficient flexibility
for States parties to design and implement national drug policies
according to their priorities and needs, consistent with the principle
of common and shared responsibility and applicable international law.”
Yet it has been increasingly
criticised by high level experts and institutions for laying down
an inflexible, outdated and counterproductive approach, overlooking
the realities of drug use and dependence.
11. In 2009, UN Member States reaffirmed their “commitment to
ensure that all aspects of demand reduction, supply reduction and
international cooperation are addressed in [full respect for] all
human rights.”
In 2015, however,
the
UN Special Rapporteur on the Right to Health argued that “while such language is welcome, it becomes meaningless
unless underpinned by clear and explicit human rights standards
and principles”; “this pledge only represents a consensus-based
commitment repeated in different fora that remains far from being
realized”. The outcome document of the UN General Assembly Special
Session on the world drug problem held in April 2016 (UNGASS 2016)
reaffirmed the 2009 commitment and made operational recommendations.
In March 2019, Government ministers at the Commission on Narcotic
Drugs (CND) renewed their commitment to the UNGASS 2016 outcome
document.
The UN Special Rapporteur for Extrajudicial,
Summary or Arbitrary Executions a year later
observed that governments had “recognised explicitly that the
‘war on drugs’ – be it community based, national or global – does
not work. And further, that many harms associated with drugs are
not caused by drugs, but by the negative impacts of […] badly thought out,
ill-conceived drug policies [which] not only fail to address substantively
drug dependency, drug-related criminality, and the drug trade, […]
they add, escalate and/or compound problems”.
2.2. Europe’s
leading role on integrating human rights into drug policies
12. The Parliamentary Assembly
of the Council of Europe (the Assembly) has, since its 2007 report
“For
a European convention on promoting public health policy in drug
control”, called several times for a shift from punitive models
to policies that are focused on public health, including policies
for prevention, education, treatment, rehabilitation, social reintegration
and harm reduction. The Social Affairs Committee highlighted that the
resulting benefits of such measures already carried out by certain
member States “have been felt by society as a whole, through reductions
in the incidence of criminal behaviour, reduced costs for health
and criminal justice systems, reduced risks of transmission of HIV
and other blood-borne viruses, and, ultimately, reduced levels of
drug use”.
13. Member States have increasingly recognised their responsibility
to ensure drug policies comply with international human rights law,
including
the Convention as interpreted in the caselaw of the European Court of
Human Rights and the European Social Charter, to which most are
also bound, and other pertinent standards of Council of Europe bodies.
14. The Council of Europe’s Pompidou Group plays a crucial role
as the drug policy co-operation platform for member States. The
November 2018 “
Stavanger
Declaration” of its Ministerial Conference reaffirmed a focus on
“human rights as a fundamental cornerstone in drug policy, in line
with the Council of Europe’s core mission”. Recognising the 2016
UNGASS outcome document as “a milestone”, the Ministers reflected
on the possibility of changing the official title of the Pompidou
Group “to more adequately reflect today’s drug policy evolution
and challenges, and subsequently to initiate a broader reflection
on the Group’s mandate, operation and working methods.” In January
2019, the Committee of Ministers took note of this decision, which
could culminate in the adoption of a revised Statutory Resolution
in 2021, on the occasion of the Pompidou Group’s 50th anniversary.
3. A
human rights-based approach to drug policy
3.1. Defining
a human rights-based approach to drug policy
16. There is little existing consensus
on what a ‘human rights-based approach’ means for the design, implementation,
monitoring and evaluation of drug policies. The absence of such
agreement obviously complicates member States’ efforts to implement
effective harmonised policies. Less than half of the countries that
replied to the questionnaire specify explicitly human rights as
a base principle for their drug-related strategies. Progress is,
however, being made.
17. Member States are shifting towards a more balanced approach
between actions to relieve people who use drugs from addictions
and marginalisation, and fighting drug trafficking and other related
crime. It is usually accompanied by the transfer of the overall
competence for the co-ordination of drug policy from the Ministry
of Interior to the Ministry of Health (for instance Croatia, Georgia,
Germany, Latvia, Montenegro, Netherlands, Norway, Poland, Portugal,
Slovenia).
18. In 2017, the Pompidou Group listed in a
statement several commitments necessary for member States to take
full account of human rights. At EU level, the EMCDDA has also developed
guidelines
on health and social responses to drug problems and a
portal of
best practices. In March 2019, a set of
International Guidelines
on Human Rights and Drug Policy were launched following a two-year global, multi-stakeholder process
involving governments, civil society, academia, and United Nations
agencies. These guidelines analyse human rights norms and apply
them to drug policy. The guidelines describe obligations that shall
or should arise from human rights standards such as the right to
the highest attainable standard of health, to life, to a fair trial,
to privacy as well as the right to live free from torture, inhuman
and degrading treatment or punishment, or arbitrary arrest and detention.
19. Some of these rights and freedoms can be connected to the
Convention, which member States are bound to. However, the Court,
which oversees the application of the Convention, has not provided
extensive guidelines for national drug policies. As far as certain
(non-absolute) rights are concerned, the Court leaves a wide margin
of appreciation to member States. Nevertheless, the Convention as
interpreted by the Court can provide useful pointers when examining
drug policy from a human rights perspective. In general, member States
shall search for a fair balance between the general interest of
the community and the protection of the individual’s fundamental
rights.
States may interfere
with certain (non-absolute) rights if, for example, it is necessary
to protect children or preserve public health and safety. However,
this requires them to demonstrate that measures are necessary to
achieve the objectives they are intended for and that no less restrictive
means are available to achieve the same aims.
20. There are various ways in which the Council of Europe and
its organs and bodies could contribute to developing standards for
harmonising drug policy. As mentioned above, in 2007, the Assembly
recommended that the Council of Europe adopt a European Convention
on promoting public health policy in drug control. The Pompidou
Group has also
called for “concrete guidance from the bodies entitled to interpret
and construe international human rights law, including the Court.”
The Assembly should encourage member States and the Committee of
Ministers to pursue work in this area and adopt an authoritative,
comprehensive and concrete guidance on human rights and drug policy.
Such work should ensure meaningful participation of all stakeholders
in all stages of the process. Stakeholders include all member States,
local and regional authorities (possibly with the participation
of the Council of Europe Congress of Local and Regional Authorities),
relevant regional and international institutions, civil society
and in particular, people who use drugs.
3.2. Evaluating
and remedying the effects of drug policies on human rights
21. Further to their existing legal
obligations, States should assess the intended and unintended effects
of envisaged drug policy measures, taking into account their potential
impact on the enjoyment of human rights. For example, the European
Social Charter requires that policies respect the right to benefit
from measures enabling individuals to enjoy the highest possible
standard of health attainable. The so-called “3AQ” test can be used
to examine whether the health services are “Available, Accessible,
Acceptable and of Sufficient Quality” for all persons with drug
disorders or addictions. Sub-standard healthcare provision in prisons deserves
particular attention. According to the principle of equivalence
generally applicable to health care in detention, prisoners who
suffer from drug disorders or addictions should receive care that
is equivalent to that which is provided outside of prison.
22. By performing this cautious human rights-based review, States
may regularly adapt drug policies to current developments and the
most accurate, reliable and objective evidence available on costs,
impacts and discriminatory effects of drug policies. Mechanisms
must be put in place to ensure that appropriate remedies are taken
when drug-related laws, policies and practices are inconsistent
with international human rights standards.
23. Capacity building of policymakers and meaningful participation
of affected communities (i.e. people who use drugs, their families
and the wider community) and civil society is essential in the development
(design and implementation) of well-informed drug policies tailored
to vulnerabilities and needs. States should guarantee a safe and
enabling environment for human rights defenders who advocate reforming
drug laws and policies, and who shall be able to conduct their activities
without fear of punishment, reprisal or intimidation.
4. Measuring
the impact of human rights-based responses to drug problems
4.1. Identification
of new rights-based indicators for measuring the effectiveness of
drug policies
24. The search for evidence-based
and comprehensive drug-related policies requires a transparent and effective
methodology to assess their success. In this context, the collection
of data should be based on specific and comprehensive indicators
of the process and outcomes of drug policies. These should provide insight
on emerging drug-related trends and guide policymakers in the development
of sustainable interventions respectful of human rights. Improved
data on drug-related public expenditure should also help direct
resources towards more efficient investments and improve transparency
and accountability of public institutions.
25. There is a growing realisation that traditional indicators
focused on the process of drug policies (namely, arrests, seizures
and criminal justice responses) are inadequate to show their real
impact on individuals and communities. The International Drug Policy
Consortium (IDPC), for example, explained that “if drug control
no longer has a singular focus on reducing cultivation, trafficking
and use – but rather on minimising drug-related health harms, improving
access to healthcare, upholding basic human rights, reducing poverty,
improving citizen safety and reducing corruption – the use of indicators
focusing on measuring the scale of and flows within the illegal
drug market will no longer be enough.”
26. Indicators should be tailored to existing national, regional
and international human rights standards. A range of relevant human
rights indicators can already be extracted from the work of Council
of Europe and other national, regional and international bodies.
Indicators
can aim to collect data on the root causes of drug-related harm
at all stages in the supply chain (cultivation, production, distribution,
use). It would include indicators such as the availability and coverage
of harm reduction and treatment, the socio-economic situation of
people who use drugs, reported cases of stigma and discrimination
in accessing healthcare, reported cases of physical and psychological
abuse by law enforcement, reported cases of human rights abuses
against people who use drugs by criminal networks, reported cases
of corruption associated with illicit markets, provision of legal
aid during trial, and proportion of drug offenders held in pre-trial
detention. Data should be disaggregated for example by age, sex,
race and ethnicity, sexual orientation and gender identity, economic status
(including involvement in sex work). Sustainable Development Goals
targets and impact-oriented indicators should also be considered;
as the overarching goal is to “leave no one behind”.
4.2. Implementing
comprehensive data collection methods
27. Data reporting methods and
tools need to be designed and constantly readjusted for member States
to collect and evaluate quality and meaningful statistics on the
effects of drug policies on human rights.
28. The Council of Europe is also in a position to support national
structures, in particular national drug observatories. The Pompidou
Group supports the setting up of national observatories within MedNET,
its network of co-operation in the Mediterranean Region covering
17 countries (including seven non-members of the Pompidou Group,
namely Algeria, Egypt, Lebanon, Morocco, Palestine
, Spain and Tunisia).
The Pompidou
Group could serve as a platform for the exchange of information
in order to identify gaps in relevant statistical tools and other
drug monitoring systems. The Group has indicated in its
2019-2022
work programme its intention to initiate a repository on drug-related
national practices and their impact on the realisation of human
rights’ obligations.
29. National authorities should support expert civil society networks
as well as networks of national and local authorities and elected
representatives. They should seek to co-operate with relevant institutions
such as the EMCDDA and UN bodies, whose role was underlined in the
November 2018 UN common
position
on drug policy. The UN Office on Drugs and Crime’s (UNODC) Annual Reports
Questionnaire (ARQ) is currently being revised in order to facilitate
the UNGASS
outcome document’s recommendation that States collect age- and gender-related
data and “consider, on a voluntary basis, […] the inclusion of information
concerning, inter alia, the promotion of human rights and the health,
safety and welfare of all individuals, communities and society in the
context of their domestic implementation of [drug-control] conventions,
including recent developments, best practices and challenges”.
30. A revised ARQ should provide a good working basis for European
policymakers, depending on the quality and extent of its data. While
the UNODC plans to define a road map for developing global standards and
generating more and higher quality drug-related data, it is essential
that the Council of Europe closely follows this process and participates
in the work towards a common understanding of human rights’ concepts and
indicators for drug policies.
5. Concrete
examples to incorporate human rights into drug policies
5.1. Prevention
of drug use and abuse
31. States should implement effective
preventive measures to address the drug problem, such as educational
programmes and awareness raising and preventive campaigns based
on scientific evidence, in multiple settings (families, schools,
communities, streets and party scenes, workplaces, etc.) and targeting relevant
ages and levels of risk.
Governments should furthermore
balance the preventative measures to ensure that they do not have
unintended negative human rights consequences. For example, the
mandatory testing of schoolchildren for drug use sometimes carried
out randomly as a preventive measure has often raised human rights
concerns and has been ultimately discouraged, as it fails the test
of proportionality.
32. Currently Scotland is beholden to the United Kingdom Government
and is unable to properly and fully set its own policy surrounding
drug issues. For example, Glasgow City Council and NHS Greater Glasgow
and Clyde have proposed a City Centre drug consumption facility
, but this continues to be blocked
by the Westminster Government, to whom drug policy is reserved.
This is disappointing given that last year, there were twice as
many drug related deaths in Dundee alone (a city with a population
of about 148,000) than in the whole of Portugal. As a whole, Scotland’s
drug death toll is more than 30 times that of Portugal’s, despite Portugal
having a population of almost double in size
.
33. A human rights-centred approach such as Portugal’s would therefore
encourage promotion of a public health narrative with non-stigmatising
attitudes and language, protecting people who use drugs from suffering discrimination,
exclusion or prejudice. Criminalisation may lead to stigmatisation
of people with drug disorders as criminals rather than patients.
In circumstances where experimentation is likely to take place,
education on the effects of drugs, and the risks both to people
who use drugs and to others, is paramount. It would also be helpful
to provide information on safer drug-taking practices and drug-testing
to prevent the consumption of unreliable and potentially lethal
street drugs.
The Global Commission on Drug Policy
(GCDP)
recommended that “if there were to be public awareness campaigns
on youth and drug use, a possible way forward would be to give honest
information, encouraging moderation in youthful experimentation
and prioritising safety through knowledge”.
34. The ‘Icelandic model’ of prevention is also a noteworthy “bottom-up”
approach which focuses on reducing known risk factors for substance
use and developing socio-economic connections at a local level, while
strengthening a broad range of community-related protective factors
(such as the role of parents and schools and the network of opportunities
around them). For instance, it aims to change unwanted behaviour by
altering the physical, economic and regulatory aspects of the environment
that provide or reduce opportunities for the behaviour to occur
(e.g. supervised after-school leisure time with universal access
to sport and cultural activities for youth).
5.2. Harm
reduction
35. While there is no universally
accepted definition of harm reduction, it can be described as a
range of policies, programmes and measures that have a decisive
impact on relieving societies from adverse health and social effects
of drugs. These measures include Opioid Agonist Treatment (OAT),
Drug Consumption Rooms (DCR), Emergency room interventions for acute
drug intoxication and overdose cases in hospitals and in community
settings, access to naloxone and training of potential first responders
in overdose management, Needle and Syringe Exchange Programs (NSP),
distribution of safer smoking kits, drug-checking services, services
provided in night-life settings, and the provision of “safe-zones”
where peer-led information can be shared. They have often proven
to be cost-effective methods to preventing life-threatening and
damaging consequences of ongoing drug use (such as deaths by overdoses,
blood-borne infectious diseases, misuse of new substances) – and
ultimately promoting the right to health.
36. Various European and international experiences of harm reduction
strategies have largely overcome negative public opinion and political
opposition; thus counteracting stigmatising attitudes and discrimination. Most
member States have to varying degrees embraced harm reduction.
The 2018 report on the “
Global State
of Harm Reduction” (GSHR) indicated that 17 of the 25 countries in Western
Europe and 26 of the 29 countries in the region of Eurasia have
policy documents supportive of harm reduction. The
EU’s
Action Plan on Drugs for 2017-2020 has specifically aimed for a stronger focus on risk
and harm reduction measures.
37. In the context of this report, I have paid particular attention
to the development of DCRs in Europe, which has been very successful
in recent decades. According to the 2018 GSHR, 89 DCRs exist in
Western Europe, none in Eurasia. While the facility that I visited
in Strasbourg is still too young to measure adequately its effects on
public order and health, many other experiences around Europe have
reported positive effects such as improved health and social indicators,
lower health bills, improved housing and employment, reduced violence and
prostitution, reduced public nuisance associated with open drug
scenes, and improved cooperation with law enforcement officials.
The House of Commons Health and Social Care Committee recommended
the introduction of DCRs as a form of harm reduction, based on a
Frankfurt case study and an explanation by the Deputy Chief Constable
of the National Police Chief Council. It advises that these facilities
would give an opportunity for drug users to be offered other types
of support, as well as receive medical supervision.
It
is clear that DCRs can only be effective if they are integrated
into a wider public health policy including adequate laws, regulations
and funding. Such facilities require an excellent knowledge of the
territory’s practices and products being used as well as the parameters
of the location chosen for the facility (needs in terms of security, type
of neighbourhood, etc.). Conflicts can be avoided if all actors
are invited to participate and regular feedback is provided to the
community. Capacity building is key as well as the implementation
of monitoring and evaluation mechanisms. Strasbourg is also part
of a network called “Solidify”, co-ordinated by the European Forum
for Urban Security (EFUS), which aims to support cities in the deployment
of a risk reduction policy by providing them with efficient tools
to accompany the installations of DCRs.
38. National experiences and reported challenges in the implementation
of DCRs show that a holistic human rights approach can help protect
individuals and societies from unintended consequences of the measures. These
include arrests and seizures by police lacking training around harm
reduction facilities (fixed and mobile), difficult accessibility
due to isolated locations of these facilities, discriminatory criteria
of access to services, lack of agreement and support from law enforcement
with regard to responsibilities in cases of violent situations or
other emergencies, poor safety standards for staff. Research by
Harm Reduction International (HRI) showed that a decline in the
funding of harm reduction facilities by both governments and international donors
had a detrimental impact on individuals and public health, particularly
in the context of prisons.
Systematic evaluations of
harm reduction services can highlight issues and tensions with human
rights. The participation of all stakeholders, in particular people
who use drugs and law enforcement officials, in the design of harm
reduction strategies and in regular follow-up community meetings
and the exchange of information at local, national and international
levels help resolve problems with due consideration of human rights.
39. Drug use is prevalent in European prisons. These are high-risk
environments for transmission of infectious diseases such as HIV,
hepatitis C and tuberculosis. Efforts to protect the health of detainees
in the same way as outside prison have also led to the implementation
of harm reduction within detention settings. However, access to
harm reduction services in prison varies significantly between and
within countries. According to the GSHR, four countries in Western
Europe and five in Eurasia provide NSP in prisons. OAT is available
in prison in all countries in Western Europe except Andorra, Iceland,
Liechtenstein, Monaco, and San Marino, Turkey). 18 countries in
the region of Eurasia provide OAT in prison (including Kyrgyzstan
whose parliament enjoys partner for democracy status). In a
2014
report, the CPT indicated that various types of NSP consistently
“improved prisoners’ health, reduced needle sharing and undercut
fears of violence”, with “no evidence of increased drug consumption
or other negative consequences” observed. A human-rights approach entails
effective provision of assistance to prisoners with drug-related
problems (as part of a wider national drugs strategy). This should
include harm reduction measures, specific training for staff and
the provision of adequate information material on drug-related issues
and services available to detainees, psycho-social services and
respect of medical confidentiality.
HRI has developed a supportive
monitoring
tool for oversight bodies to monitor harm reduction services
provided to prisoners.
5.3. Treatment
and rehabilitation services
40. European policymakers are putting
increasing emphasis on treating drug disorders and addictions as
a complex chronic medical conditions (often in comorbidity with
other mental health disorders) and risks for social marginalisation,
rather than a crime. Unreliable and potentially lethal street drugs,
poorly informed drug-taking practices and stigmatisation often increase
the suffering of persons with drug problems and call for States
to meet their obligations under their conventional shared duty to
protect. The 2016
outcome document stated that “drug dependence can be prevented and treated
through effective, scientific and evidence-based drug treatment,
care and rehabilitation programmes”.
41. Mechanisms must be put in place to ensure the operation of
drug treatment and rehabilitation services do not undermine or threaten
the right to health and prevent any human rights abuses. Member
States should for example prioritise health care and social support
in community settings rather than institutions. To prevent “disciplinary
treatment” approaches to proliferate, where drug-dependent individuals
are forced into centres and subject to ill-treatment or forced labour,
treatment should always involve the voluntary participation of individuals
with drug use disorders, with informed consent.
Treatment and rehabilitation
programmes must provide measures to protect the rights of any person
who – temporarily or permanently – is unable to consent. States
should monitor drug dependence treatment practices and inspecting
treatment centres as well as places of detention, to ensure these
are free from torture, inhuman or degrading treatment.
42. The right to health (cf. note 6) also requires States to review
and change national policies that have a disproportionate effect
on access to effective medical treatment, including essential medicines
(such as controlled drugs used for OAT, pain management, palliative
care). However, there are concerns about the harm arising from the
misuse of prescription medications, including opioids.
I refer here to the current work of
my colleague, Mr Joseph O’Reilly (Ireland, EPP/CD) with the Social
Affairs Committee, on
involuntary addiction
to prescription medicines.
43. With regard to prisoners, member States have a duty, according
to the Court’s case-law (
Kudła v. Poland [GC],
no.
30210/96) and the
European
Prison Rules, to safeguard their health, and “deal with withdrawal symptoms
resulting from use of drugs, medication or alcohol”. As explained
by
HRI, “denying treatment to a person with a drug dependence
can cause unbearable pain and suffering.” The Court recognised in
2016 that the denial to grant treatment, including OAT, to prisoners
with a drug dependency could constitute inhuman and degrading treatment.
States must ensure equivalence
of care in prisons and other custodial settings, as well as continuity
of care after admission to, or release from, prison.
5.4. Law
enforcement and human rights
44. Law enforcement efforts have
become more effective and strengthened international co-operation
may help to increase interception illicit drugs. Despite considerable
efforts, law enforcement bodies have not been able to sustain a
decrease in the use and availability of drugs, nor eliminate human
rights abuses by drug criminals, including trafficking and exploitation.
The WDR 2019 states that effectively addressing the supply of drugs
requires shifting the focus of law enforcement agencies from measuring
success by quantities of drugs seized to dismantling drug trafficking
organisations and transnational organised criminal groups. This
objective requires a better understanding of the dynamics of organised
crime and the design of effective counternarcotic interventions
in co-ordination with national, regional and international institutions.
45. The UNGASS
outcome document called for “effective drug-related crime prevention
and law enforcement measures” as well as “effective criminal justice
responses to drug-related crimes". To this aim, “legal guarantees
and due process safeguards pertaining to criminal justice proceedings”
and the right to a fair trial must be ensured. States recommitted
on the same occasion to uphold the prohibition of arbitrary arrest and
detention as well as the prohibition of torture, inhuman or degrading
treatment or punishment. These commitments are also set out in the
Convention, in articles 3 (prevention of torture), 5 (right to liberty
and security), 6 (right to a fair trial), 14 (and Protocol No. 12
on the prohibition of discrimination) as well as protocol No. 6
(abolition of the death penalty).
46. In practice, repressive law-enforcement measures to control
drugs use have often been accompanied by excessive force or disproportionate
sentencing and use of detention, with harmful effects on vulnerable persons.
This situation begs for a
balanced and comprehensive approach through health-centred, rights-based
criminal justice responses to drug-related crime. The CPT noted
that “serious consideration should be given to the negative psychosocial
impact of incarceration, particularly on young drug‑dependent persons,
the lack of appropriate treatment and rehabilitation facilities
for drug dependency in prison settings”. Efforts to exhaust all
available alternatives (e.g. diversion, alternative sanctions, release
on parole – combined with voluntary treatment offered in the community)
before incarcerating drug-related offenders is the most pertinent rights-based
strategy.
Detention should only be imposed
where it is deemed reasonable, necessary and proportional. In this
context, certain experts argue that the text of Article 5.1e) of
the Convention, which allows for the “lawful detention of persons
for the prevention of the spreading of infectious diseases, of […]
drug addicts”, could be considered outdated.
Indeed, in my personal opinion,
people should not be detained solely on the basis of drug use or
drug dependence.
47. Nearly a third of the countries that replied to my questionnaire
indicated that they refrained from prosecuting minor drug-related
offences, in order to prioritise public health, avoid worsening
vulnerabilities and relieve prisons from overcrowding. In Europe,
Portugal has been at the forefront of alternative drug policy models
after facing a devastating drugs crisis. In 2001, while leaving
the laws on drug trafficking unchanged, it turned the purchase or
possession of small quantities (up to a 10-day supply) from a criminal
into an administrative offense. Offenders are now summoned to a
“Commission for the Dissuasion of Drug Addiction” hearing within
the Ministry of Health. Only for quantities beyond the 10-day supply
limit, a criminal procedure is launched.
This public health approach
should be distinguished from the “drug treatment courts”, offering court
supervised treatment for drug dependent people. These have been
increasingly criticised for hampering access to voluntary, higher
quality treatment, and for human rights violations that occur in
compulsory treatment centres.
Some also argue that current drug policies
interfere with the right to private life. Indeed, the prohibition
of “recreational” drug-taking in private could interfere with or
even violate the right to private life (especially in circumstances
where there are no risks to children or public health).
48. The death penalty has been prohibited in all member States.
However, in a
joint
declaration on 10 October 2018, the Secretary General of the Council
of Europe and the European Union High Representative for Foreign
Affairs and Security Policy, urged European states not to co-operate
with the implementation of drug policies in countries that apply
the death penalty for drug offences.
At least 3,940 people were executed for
a drug offence in the last decade. In the 2018
Stavanger
Declaration, the Pompidou Group encouraged governments to “actively
work” against the death penalty for drug-related offences and to
“condemn extra-judicial executions”. Some member States have reportedly
discontinued support for international drug-enforcement co-operation
activities that may directly or indirectly lead or contribute to
the execution or any unlawful arrest of persons for drug-related
offences.
In 2019, Mr João Goulão,
President of the Pompidou Group, stated that "It is our great responsibility
to encourage countries, where there is still a capital punishment for
crimes related to drugs, to abolish this inhuman practice."
6. Cross-cutting
human rights issues in drug policies
49. The implementation of drug
policies can have a profoundly disproportionate impact on people
who use drugs on the basis of sex, race, colour, national or social
origin, among others. Multiple forms of discrimination will impact
on the lives of people who use drugs and create barriers to the
full enjoyment of their human rights. Policies should address the
root causes and socio-economic factors (for example inadequate standard
of living, lack of social security) that may increase the risks
of using drugs or that lead people to engage in the drug trade.
6.1. Women
and girls
51. Women who use drugs are particularly vulnerable to stigmatisation
and marginalisation in the family and the community.
Women may be afraid to
seek treatment, in particular if they are pregnant, survivors of gender-based
violence and fear legal issues and social stigma. While the above-mentioned
benefits of harm reduction facilities and drug treatment programmes
encourage their promotion, authorities must be particularly attentive
to removing any obstacles to women’s equal quality and voluntary
access to such health-oriented measures including holistic psychosocial,
sexual and reproductive care. A gender-sensitive perspective, that responds
to differentiated needs, risks and harms to women and girls, should
always be mainstreamed into the design and implementation of drug
policies, as recalled by the Pompidou Group’s 2018
Stavanger
Declaration and
ongoing
work on the gender dimension in drug policies. Ireland, for
instance, has identified in its
national strategy on drug use that the “absence of childcare can be a
barrier for women attending treatment and after-care services” and
aimed to increase “the range of wrap-around community and residential
services equipped to meet the needs of women who are using drugs
and/or alcohol in a harmful manner, including those with children
and those who are pregnant”. Austria and Cyprus’ replies to the
questionnaire, for example, have referred to gender-sensitive approaches
in drug-related services.
52. Women and girls also continue to be particularly vulnerable
to engaging in drug-related crimes, especially when they lack education
and economic opportunities or have been victims of abuse. Prison
settings are particularly concerning. According to HRI, in 2012,
31,000 of the women in prison across Europe and Central Asia were
incarcerated for drug offences. This represented 28%, or more than
one in four, of all women in prison in the region.
Thus, States at the
UNGASS
2016 committed to “identify and address protective and risk
factors and conditions that continue to make women and girls vulnerable
to exploitation and participation in drug trafficking, […] with
a view to preventing their involvement in drug-related crime”. They
also committed to ensuring “non-discriminatory access to health,
care and social services in prevention, primary care and treatment
programmes, including those offered to persons in prison or pretrial
detention, which are to be on a level equal to those available in
the community, and ensur(ing) that women, including detained women,
have access to adequate health services and counselling, including
those particularly needed during pregnancy.”
6.2. Children
and young people
53. Young people are an important
target group for many drug interventions as evidenced by the replies
to the questionnaire. The Council of Europe has been engaged in
the promotion of the UN Convention on the Rights of the Child and
has developed a wide range of
legal
standards which apply to children’s rights. Member States have
committed to pursuing children’s best interests, with due regard
to their evolving capacities, by eliminating all forms of violence
against children, including sexual violence, exploitation and corporal punishment;
promoting child-friendly justice and social services; guaranteeing
the rights of children in vulnerable situations, such as drug-related
abusive living environments.
Authorities
must protect children from the risk that the use of drugs or dependence
of drugs by parents leads to neglect or abuse of their children. Always
acting in the best interests of the child, States have an obligation
to provide appropriate assistance to parents in carrying out their
childcare responsibilities when needed. This includes the duty to
support drug-dependant parents. A parent’s use of drugs on its own
does not justify the separation of a child from his or her parents,
but child protection authorities must be particularly vigilant in
such a situation.
54. The Pompidou Group’s
Stavanger
Declaration recalled the right of children to be protected from
the illicit use of narcotic drugs and psychoactive substances. However,
according to several UN experts in a
joint
letter published ahead of the UNGASS 2016, “history and evidence
have shown that the negative impact of repressive drug policies
on children’s health and their healthy development often outweighs
the protective element behind such policies, and children who use
drugs are criminalised, do not have access to harm reduction or
adequate drug treatment, and are placed in compulsory drug rehabilitation
centres.” Also, children and young people would face greater detrimental
effects stemming from law enforcement operations, a criminal record
and/or detention, including in areas of employment, housing, education
and welfare. At the
UNGASS 2016, States committed to “implement age-appropriate practical
measures, tailored to the specific needs of children, (and) youth”
to prevent drug use initiation and abuse and address their involvement
in drug-related crime. Detention of young offenders must always
be a matter of exception and the length of pre-trial detention should
never be excessive.
Particular attention should
be paid to the children’s right to informed consent, in a manner
consistent with their evolving capacities, whenever they require
medical treatment.
6.3. Other
members of societies exposed to particular risks
55. With respect to the prohibition
of discrimination under Article 14 of the Convention, States should
ensure that drug policies do not have unnecessary, undesirable or
disproportionate impact on the delivery of health care and the provision
of housing, education, employment to persons suffering from addiction
and other drug disorders. States should have adequate mechanisms
to monitor and address all forms of discrimination and stigma. Member
States should ensure open and inclusive debates with the participation
of affected populations.
56. The UN Working Group of Experts on People of African Descent
found that certain minorities, in particular people of African descent,
are disproportionately affected by excessively punitive drug policies
and racial profiling. A 2019 civil society
report highlighted for instance how the unequal enforcement
of drug laws is a source of profound racial injustice in England
and Wales. The report found that black people were stopped and searched
for drugs at almost nine times the rate of white people, in 2016/17.
An estimated 9% of white people reported using drugs in that period
compared to 4.7% of black people. Asian people and those in the ‘mixed’
group were stop-searched for drugs at almost three times the rate
of white people. Lesbian, gay, bisexual, transgender and intersex
(LGBTI) persons who use drugs are also disproportionately impacted
by drug policies in many countries. Evidence shows that LGBTI persons
who use drugs may not seek support or treatment from health-care
providers because of previous or anticipated experiences of discrimination.
57. Ireland, for example, has aimed in its
national
strategy on drug use to improve access to and the capacity of
services for people with more complex needs, including among others
Members of the Traveller community and other minority ethnic communities,
LGBTI and migrant communities, sex workers and homeless people. Furthermore,
the Strategy aims to foster engagement with representatives of these
communities and/or services working with them as well as to “intervene
early with at risk groups in criminal justice settings” by providing
relevant training for staff and appropriate interventions.
7. Conclusions
58. While old and emerging drug-related
trends have put countries to the test, member States have increasingly
found viable solutions by bringing human rights into drug policy
development, implementation, monitoring and evaluation. What seemed
to be existing in “parallel universes” might well be finding a meeting point.
There are many opportunities
for sustainable drug policies, but it takes a proactive and holistic approach
to counter societal problems related to drugs in a way that fully
respects human rights. Political and infrastructural obstacles need
to be identified and addressed to allow for the implementation of
effective and human rights-compatible responses. Member States should
make use of the existing tools to assess their policies’ implications
on individuals and adequate indicators should be available to support
governments and institutions collecting relevant evidence on drug-related
policies.
59. This report and conclusions are summarised in the draft resolution
and a preliminary draft recommendation to the Committee of Ministers,
presented above.