Table 4: Harm Reduction and the Right to a Fair Trial

Examples of Human Rights Violations

  • An individual is convicted of drug charges after an undercover police officer lures them into committing a drug offense.
  • A detainee is kept in pre-trial detention for drug charges for an unreasonable length of time.
  • An individual is convicted on a drug offense without trial.
  • An individual is convicted of a drug charge based on evidence obtained during an illegal police search of his or her home.
Human Rights Standards Treaty Body Interpretation
ICCPR 14(2): Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. HRC: Noting of 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” violates Article 9 and 14 of the ICCPR. CCPR/C/NZL/CO/5 (HRC, 2010).
Human Rights Standards Case Law
ECHR 6(1): In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. . .

ECHR 6(2): Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

ECtHR: Held that where the activity of undercover agents instigates a drug offence and there is nothing to suggest the offense would have been committed without the police’s intervention, this constitutes “incitement,” and evidence obtained as a result cannot be used against a defendant. The Court examined “whether the proceedings as a whole, including the way in which the evidence was obtained, were fair “and found that “the police’s intervention and the use of the resultant evidence in the ensuing criminal proceedings against the applicant irremediably undermined the fairness of the trial.” Vanyan v. Russia, 53203/99 (December 15, 2005). See also, Teixeira de Castro v. Portugal, 25829/94 (June 9, 1998).

ECtHR: Applying the above cases in 2007, the Court held that a Russian trial court should have considered evidence that a defendant facing drug charges had been entrapped by the police, especially considering that he did not have a criminal record and the only allegations of his involvement in drug dealing came from a police informant. Khudobin v. Russia, 59696/00 (October 26, 2007).

ECtHR: The Court lists criteria defining what constitutes police entrapment, but does not finid a violation of Art. 6 in this case. Bannikova v. Russia, 18757/06 (November 4, 2010).

Other Interpretations 

Charter of Fundamental Rights of the European Union, Arts. 47-50: “right to an effective remedy and to a fair trial,” “presumption of innocence and right of defence,” “principles of legality and proportionality of criminal offenses and penalties,” and “right not to be tried or punished twice in criminal proceedings for the same criminal offense.”