Table 3: Harm Reduction and Freedom from Arbitrary Arrest and Detention

Examples of Human Rights Violations

  • Drug users are arrested or detained based on planted evidence or evidence obtained through an illegal search or seizure.
  • Drug users are imprisoned on criminal charges without a fair trial.
  • Drug users are committed to forced treatment or detoxification without their consent.
Human Rights Standards Treaty Body Interpretation
ICCPR 9(1): Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. HRC General Comment 8 (1): Has held that protections under Article 9 apply to all forms of detention, including for “drug addiction.”

HRC: Noting to New Zealand that “the finding of an infringement of the presumption of innocence in criminal legislation related to drug possession by the Supreme Court has not yet led to amendments of the relevant legislation.” CCPR/C/NZL/CO/5 (HRC, 2010)

HRC: Has expressed concern in Mauritius that bail is not allowed for persons arrested or held in custody for the sale of drugs, urging the government to “review the Dangerous Drugs Act in order to enable judges to make a case-by-case assessment on the basis of the offence committed.” CCPR/CO/83/MUS (2005).

HRC: Has expressed concern in Ireland about the 7-day period of detention without charge under the Drug Trafficking Act (2005).

CRC 37(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time. CRC General Comment 10: Noting that “the rights of a child deprived of his/her liberty, as recognized in CRC, apply with respect to … children placed in institutions for the purposes of care, protection or treatment” including drug treatment.

CRC: Has expressed concern in Vietnam about the treatment of children in drug detention centers and recommended that the government “Take all necessary measures to prevent, prohibit and protect children administratively detained in connection with drug addiction problems from all forms of torture or other cruel, inhuman and degrading treatment or punishment.” CRC/C/VNM//CO/3-4 (2011).

CRC: Has expressed concern in Brunei Darussalem “that children abusing drugs may be placed in a closed institution for a period of up to three years” and recommended that the government “develop non-institutional forms of treatment of children who abuse drugs and make the placement of children in an institution a measure of last resort” (2003).

Human Rights Standards Case Law
ECHR 5(1): Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants.”

 

ECtHR: The applicant’s sentence for drug trafficking required placement in a prison or State hospital where he could receive treatment for drug addiction but the applicant was placed in an ordinary prison. While a detention must take place “in accordance with a procedure prescribed by law” and be “lawful”, he Court finds that the applicant’s “detention” was the consequence of his conviction as a drug trafficker. The Court found that only Art. 5(1)(a) applied in this case and that while the implementation of the sentence does not have any bearing on the lawfulness of a deprivation of liberty. Therefore, the Court found no violation of Art. 5(1). Bizzotto v. Greece, 22126/93 (November 15, 1996).

ECtHR: A person charged with an offence must always be released pending trial unless the State can show that there are “relevant and sufficient” reasons to justify the continued detention. In this case, the applicant was accused of absconding investigations for his charges of drug trafficking. The Court held that the “gravity of the charges cannot by itself serve to justify long periods of detention on remand.” Fursenko v. Russia, 26386/02 (April 24, 2008).

ACHR 7(1): Every person has the right to personal liberty and security.

ACHR 7(2). No one shall be deprived of his physical liberty except for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto.

ACHR 7(3). No one shall be subject to arbitrary arrest or imprisonment.

ACHR 7(4)-(6). Relating to rights of detained persons.

IACHR: Two men were held in custody for suspicion of their involvement in international drug trafficking. The men were taken into custody and were held incommunicado for five days and were not advised of their rights, not provided any reasons for custody, or taken before a judge. The men were held in custody for a year despite lack of evidence to convict them. The Court found that the State violated Art. 7(3) “owing to the lack of due justification in the adoption and maintenance of the remand in custody” [para. 119]. Chaparro Álvarez and Lapo Iñiguez v. Ecador (November 21, 2007).

Other Interpretations 

WG Arbitrary Detention: Concluding to Italy that “the system of open-ended “security measures” for persons considered “dangerous” on the basis of mental illness, drug-addiction or otherwise might not contain sufficient safeguards.” A/HRC/10/21/ADD.5 (WG Arbitrary Detention, 2009)

WG Arbitrary Detention: From 2003-2005, has expressed concern about arbitrary detention of “drug addicts” and “people suffering from AIDS”; recommended that persons deprived of their liberty on health grounds “have judicial means of challenging their detention”; concluded that bail conditions can be difficult to meet for people who use drugs; and recommended that states prevent over-incarceration of vulnerable groups.

UN Standard Minimum Rules for Non-custodial Measures (Tokyo Rules), adopted by GA Res 45/110 (December 14, 1990), Para. 2.3: “In order to provide greater flexibility consistent with the nature and gravity of the offence, with the personality and background of the offender and with the protection of swociety and to avoid unnecessary use of imprisonment, the criminal justice system should provide a wide range of non-custodial measures, from pre-trial to post-sentencing dispositions. The number and types of non-custodial measures available should be determined in such a way so that consistent sentencing remains possible.”

Code of Conduct for Law Enforcement Officials (1979)

Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990)

Arab Charter on Human Rights: Art. 14(1). Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest, search or detention without a legal warrant.

Art. 14(2). No one shall be deprived of his liberty except on such grounds and in such circumstances as are determined by law and in accordance with such procedure as is established thereby.