On arbitrary detention in drug policies - Submission to the UN Working Group on Arbitrary Detention

The Human Rights Council, in its resolution 42/22, requested "the Working Group to prepare, as suggested by the Working Group in its report submitted to the Human Rights Council at its thirtieth session, a study on arbitrary detention relating to drug policies to be submitted to the Council at its forty-seventh session, and to bring the report to the attention of the Commission on Narcotic Drugs as the policymaking body of the United Nations with prime responsibility for drug-control matters". The document below is one of IDPC's submissions to the Call released by the UN WGAD.

A different submission, in Spanish, submitted with Equis Justicia para las Mujeres, el Instituto de Investigaciones Jurídicas de la Universidad Autónoma de Chiapas, la Oficina de Washington para América Latina, y el Centro de estudios de Derecho, justicia y sociedad (Dejusticia), is available here.

The International Drug Policy Consortium (IDPC, www.idpc.net) welcomes the opportunity to provide a submission to the United Nations Working Group on Arbitrary Detention (the Working Group) concerning cases of arbitrary detention as they relate to drug policies. This submission outlines the main global trends concerning arbitrary detention and connected human rights violations carried out in the name of the drug policies implemented by UN member states.

We respectfully urge the Working Group to include the following issues in their study:

1. The criminalisation of drug use and drug possession for personal use remains a key driver of arrests and incarceration worldwide, with an estimated 470,000 individuals in prison for drug use only. Detention for drug possession or use is inherently arbitrary, as it is a manifestly inappropriate response to drug use and drug dependence, causes disproportionate harm, and is applied in a fundamentally discriminatory way, targeting certain populations on the basis of gender, race, ethnic origin and socio-economic status.
2. The disproportionate criminal punishment of drug offences. Over 1.7 million people are in prison worldwide for drug trafficking offences. Mandatory pre-trial detention, minimum mandatory prison terms equal to those envisaged for serious and violent crimes, the wholesale exclusion of drug offenders from prison benefits, and legal regimes that do not allow for the consideration of the personal circumstances of the alleged offender, result in disproportionate penalties.
3. The continued use of compulsory drug detention centres, in which over 400,000 people who use drugs are currently held worldwide. These centres constitute a manifest form of arbitrary detention, as they are not an appropriate response to drug use, in some cases operate without any form of fair trial protection, and they subject people who use drugs to serious ill-treatment, ranging from corporal punishment to the denial of appropriate care.
4. The proliferation of private drug ‘rehabilitation’ centres in which people who use drugs are interned against their will and subjected to “rehabilitation” that is not supported by evidence, and that can sometimes amount to torture or ill-treatment, or result in death. Some member states have facilitated this development by failing to ensure the provision of evidence-based services and programmes in response to drug use and dependence, by failing to monitor, regulate and evaluate the effectiveness of such private centres, and in some cases by sustaining them with public funding and legal frameworks that effectively mandate the completion of treatment or rehabilitation programmes for people arrested for drug use.
5. The impact of COVID-19 on detentions and drug control. A significant number of countries reduced their prison population to prevent the spread of the COVID-19 pandemic. While this is encouraging proof that it is possible to tackle the role of mass incarceration in drug policies, in some countries people charged with drug offences have been categorically excluded from these measures, showing the dehumanising power of punitive drug control.

For each of these issues, we provide an overview of the elements that lead to arbitrary deprivations of liberty, and we cite – where possible – good practice examples.