Statement by the UN Working Group on Arbitrary Detention
GENEVA (20 March 2019) - The absolute prohibition of arbitrary deprivation of liberty and the safeguards which are in place to guard against such instances apply to everyone, including those arrested, detained or charged with drug-related offences, as well as those undergoing compulsory rehabilitation programs for drug addiction. States must take immediate measures to address systematic instances of arbitrary detention as a consequence of drug control laws and policies, says a group of UN human rights experts*.
Arbitrary detention for drug offences or drug use can occur across criminal and administrative settings. "Administrative detention of people who use drugs justified on the basis of health grounds can lead to involuntary commitment or compulsory drug treatment that is inconsistent with both international drug control conventions and international human rights law", UN experts said.
Evidence shows that what is referred to as "treatment" in many treatment centers in fact includes painful, unmedicated withdrawal, beatings, military drills, verbal abuse, and sometimes scientific experimentation without informed consent. Forced labor, without pay or at extremely low wages is used as "rehabilitation," with detainees punished if work quotas are not met. These abuses are flagrant violations of the right to be free from torture, cruel, inhuman, or degrading treatment and punishment and the right to health. Reported human rights abuses in so-called drug treatment and rehabilitation centers ("rehabs"), established and run by private individuals or organizations in many countries, are disturbing development. They must be investigated and remedied.
Denial of medical treatment and/or absence of access to medical care in custodial settings may constitute cruel, inhuman or degrading treatment or punishment. Equally, subjecting persons to treatment or testing without their consent may constitute a violation of the right to physical integrity.
In 2012, twelve United Nations entities, including the UN Office on Drugs and Crime, the World Health Organization, the UN Children’s Fund, the Office of the High Commissioner for Human Rights and UNAIDS1 called for the closure of drug detention centers and the release of the people detained there without delay. Despite this call, many States still continue to use such detention centres. As an alternative to compulsory drug detention and rehabilitation centres, States should make available voluntary, evidence-informed and rights-based health and social services in the community. Where a State is unable to close the centres rapidly, without undue delay, measures should be established immediately. Such measures should include a process to review the detention of those in the centres to ensure that there is no arbitrary detention and that any detention is conducted according to relevant international standards of due process and provides alternatives to imprisonment.
States should also establish judicial and other independent oversight and reporting over the review and closure process of the centres; and moratoria on further admission into compulsory drug detention and rehabilitation centres of people who use drugs; and should adopt gender-sensitive and evidence-based drug treatment services , including harm reduction programmes, for women in detention.
UN experts recalled that in the outcome document of the thirtieth special session of the General Assembly, on the world drug problem, all Member States of the United Nations committed to addressing and eliminating prison overcrowding and violence.
Some legal policies and practices lead to overcrowding of prisons and other places of deprivation of liberty, including tougher law and order approaches, mandatory use of pretrial detention, disproportionate lengths of sentence, frequent delays in the judicial system, poor monitoring of inmate status and release entitlement, and the failure to grant parole. States should considers measures to ease overcrowding include alternatives to deprivation of liberty, such as diversion, community service, and administrative and monetary sanctions.
The principle of proportionality, which must continue to be a guiding principle in drug-related matters. Criminalization of drug use or consumption should be avoided by all States. Custodial sentences may be imposed as a measure of last resort and should be applied proportionately to meet a pressing societal need. In order to meet the requirement of proportionate sentencing, States should revise their penal policies and drug legislation with the aim of reducing minimum and maximum penalties and decriminalizing the personal use of drugs and minor drug offences. These measures can contribute to the implementation of the 2030 Agenda of Sustainable Development Goals.
At every stage of the criminal justice system, members of vulnerable and marginalized groups who use drug, such, minorities, people of the African descent, indigenous peoples, persons with disabilities, and lesbian, gay, bisexual, transgender and intersex (LGBTI) persons are discriminated against, including facing arbitrary arrest and detention. States should take measures to prohibit discriminatory practices of arrest and detention of members of vulnerable and marginalized groups in the drug control efforts, UN experts said.
The comments by the UN Working Group of Arbitrary Detention come on the occasion of 62nd session of the UN Commission on Narcotic Drugs, which will discuss the follow up to the thirteen special session of the General Assembly on the world drug problem held in 2016.
The UN Working Group on Arbitrary Detention comprises five independent experts from around the world: Mr. Seong-Phil Hong (Republic of Korea) Chair-Rapporteur; Ms Leigh Toomey (Australia), Vice-Chair on Follow-Up; Ms Elina Steinerte (Latvia), Vice-Chair on Communications; Mr. José Antonio Guevara Bermúdez (Mexico); and Mr. Sètondji Roland Adjovi (Benin).
The Working Group is part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the Council’s independent fact-finding and monitoring mechanisms. Special Procedures mandate-holders are independent human rights experts appointed by the Human Rights Council to address either specific country situations or thematic issues in all parts of the world. They are not UN staff and are independent from any government or organization. They serve in their individual capacity and do not receive a salary for their work.
Check the Database of the Working Group on Arbitrary Detention.
Follow the UN’s independent human rights experts on Twitter @UN_SPExperts