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United Nations

A/HRC/30/65

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General Assembly

Distr.: General

4 September 2015


Original: English

Human Rights Council

Thirtieth session

Agenda items 2 and 8



Annual report of the United Nations High Commissioner
for Human Rights and reports of the Office of the
High Commissioner and the Secretary-General


Follow-up to and implementation of the Vienna

Declaration and Programme of Action

Study on the impact of the world drug problem on the enjoyment of human rights

Report of the United Nations High Commissioner for Human Rights*

Summary

In its resolution 28/28, the Human Rights Council requested the United Nations High Commissioner for Human Rights to prepare a study, in consultation with States, United nations agencies and other relevant stakeholders, to be presented to the Council at its thirtieth session, on the impact of the world drug problem on the enjoyment of human rights, and recommendations on respect for and the protection and promotion of human rights in the context of the world drug problem, with particular consideration for the needs of persons affected and persons in vulnerable situations. The present report was prepared pursuant to the request of the Council.






I. Introduction

1. In its resolution 28/28, the Human Rights Council requested the United Nations High Commissioner for Human Rights to prepare a study, in consultation with States, United Nations agencies and other relevant stakeholders, to be presented to the Council at its thirtieth session, on the impact of the world drug problem on the enjoyment of human rights, and recommendations on respect for and the protection and promotion of human rights in the context of the world drug problem, with particular consideration for the needs of persons affected and persons in vulnerable situations.

2. Requests for information were sent to States and other stakeholders. Submissions were received from 24 States, 4 United Nations agencies and other international organizations, 4 national human rights institutions and 35 non-governmental organizations.1

3. Three treaties form the core legal framework of the United Nations international drug control regime: (a) the Single Convention on Narcotic Drugs of 1961 as amended by the 1972 Protocol, which brought plants such as cannabis, the coca bush and the opium poppy under international control; (b) the Convention on Psychotropic Substances of 1971, which did the same for synthetic substances and precursor chemicals used in manufacturing drugs; and (c) the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988, which increased the scope of international policing of the drug trade and highlighted the connection between the drug trade and organized crime (see art. 3 (5)). These treaties bring hundreds of illicit substances under international control, criminalizing virtually every aspect of the unauthorized production and distribution of those substances, although production, distribution and possession for medical and/or scientific purposes is permitted.2 While human rights are not specifically addressed in these treaties, the primary goal of the international drug control regime, as stated in the preamble of the 1961 Convention, is the protection of the health and welfare of humankind.

4. The International Narcotics Control Board oversees implementation of all three drug conventions. It monitors illicit drug production and trade, as well as access to controlled substances for scientific and medicinal purposes, and investigates States that do not comply with treaty requirements. The Commission on Narcotic Drugs classifies narcotic and psychotropic drugs under different levels of restriction; it also serves as a governing body of the United Nations Office on Drugs and Crime (UNODC) and approves the budget of the Fund of the United Nations International Drug Control Programme.

5. In its resolution 69/201, the General Assembly reaffirmed that the world drug problem must be countered in full conformity with the Charter of the United Nations and with full respect for all human rights. By its resolution 51/12, the Commission on Narcotic Drugs called for the promotion of human rights in implementing international drug control treaties, and the International Narcotics Control Board has stated that human rights must be taken into account when interpreting international drug control treaties. The Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health has argued that when the international drug control regime and international human rights law conflict, human rights obligations should prevail (see A/65/255, para. 10).



II. Right to health

A. Access to treatment

6. The right to health is provided for in article 12 of the International Covenant on Economic Social and Cultural Rights. Under articles 2 (2) and 3 of the Covenant, States are required to implement the right to health on a non-discriminatory basis, which includes extending that right to drug users.

7. The Special Rapporteur on the right to health has underlined the distinction between drug use and drug dependence. Drug dependence is a chronic, relapsing disorder that should be medically treated using a biopsychosocial approach. Drug use is neither a medical condition nor does it necessarily lead to drug dependence. People who use drugs and people who are dependent on drugs possess the same right to health as everyone else, and those rights cannot be curtailed if the use of drugs constitutes a criminal offence (see A/65/255, para. 7). The Special Rapporteur has noted that the same standards of ethical treatment apply to the treatment of drug dependence as to other health-related conditions, including with regard to the right of a patient to make decisions about treatment and to refuse treatment.

8. The Special Rapporteur has emphasized that health-care personnel have an obligation to provide treatment on a non-discriminatory basis and not to stigmatize or violate a patient’s human rights. Nevertheless, people who use drugs may be subject to discrimination in health-care settings. People who inject drugs, for example, may have poorer access to health care in some countries, including for the treatment of HIV/AIDS. This may be due to unjustified restrictions by health-care providers on the provision of heath care for people who inject drugs.3 The Special Rapporteur noted that care providers may not have adequate information or training concerning harm reduction measures (see A/65/255, para. 46). The World Health Organization (WHO) has recommended training health workers on issues of stigma and non-discrimination, to achieve better health outcomes.4

9. Individuals have sometimes been denied access to medical treatment on the grounds of their prior or current drug use, where evidence does not justify denial of treatment. Such denial has occurred on the rationale that a person’s drug use would make him or her unable to adhere to treatment. The Special Rapporteur notes that adherence to medical treatment is not necessarily lower among persons who use drugs, and should be assessed on an individual basis (see A/65/255, paras 23-24).

10. Outreach programmes are useful in providing information and referral health services to drug users in the community. Information and education programmes can minimize harm to individuals who use drugs and encourage drug dependent persons to seek treatment.5



B. Harm reduction

11. Harm reduction interventions aim to reduce the harms associated with the use of psychoactive drugs, without necessarily discouraging use. They include needle and syringe programmes, prescription of substitute medications, drug-consumption rooms, promotion of non-injecting routes for the administration of drugs, overdose prevention practices, and outreach and education programmes (see A/65/255, para. 50). Persons who inject drugs are at a heightened risk of contracting HIV, hepatitis B and C,6 and tuberculosis.7

12. The Committee on Economic, Social and Cultural Rights,8 the Committee on the Rights of the Child9 and the Special Rapporteur on the right to health have all determined that a harm reduction approach is essential for persons who use drugs. WHO, UNODC and the Joint United Nations Programme on HIV/AIDS (UNAIDS) promote harm reduction for injecting drug users.10 The Office of the United Nations High Commissioner for Human Rights has supported harm reduction and the Human Rights Council, in its resolution 12/27, recognized the need for harm reduction programmes.

13. Needle and syringe programmes involve the provision of sterile injection equipment to injecting drug users. WHO has endorsed the use of such programmes, noting that they reduce HIV infections substantially, in a cost-effective manner, without any major negative consequences.11 Needle and syringe programmes eliminate contaminated needles, which reduces the risk of transmitting HIV and other blood-borne diseases such as viral hepatitis, in particular hepatitis B and hepatitis C (see A/65/255, para. 51).12

14. Opioid substitution therapy 13 is an evidence-based approach involving the prescription of medications such as methadone or buprenorphine to treat opioid dependence. Opioid substitution therapy decreases the prevalence of injecting drug use and of sharing injecting equipment, thereby reducing the risk of contracting HIV and other blood-borne viruses, and is effective in managing withdrawal from opioids and preventing a relapse into drug use (see A/65/255, para. 52). WHO has recommended that all people from key populations who are dependent on opioids be offered and be given access to opioid substitution therapy.14

15. Drug overdoses, most of which involve opioids, are the main cause of drug-related deaths. Opioid substitution therapy reduces the use of drugs by injection and thus of overdosing by almost 90 per cent. 15 The Special Rapporteur on the right to health and WHO have highlighted that first aid training for the administration of naloxone, which counters the effects of opioid overdose, can prevent overdose-related deaths and minimize the harm associated with drug overdose (see A/65/255, para. 54).16

16. Providing drug users with access to drug-consumption rooms can contribute to preventing the transmission of diseases and to reducing damage to the veins, as well as encourage users to make use of treatment and other services. Drug-consumption rooms have contributed to reducing overdose rates and increased access to medical and social services (see A/65/255, para. 54).

17. As of 2014, needle and syringe programmes had been implemented in 90 countries and opioid substitution therapy was available in 80 countries. However, needle and syringe programmes have been confirmed to be absent in 68 countries where drugs are injected. In 2014, it was reported that there were 88 drug-consumption rooms worldwide, of which only two were outside of Europe, Australia and Canada.17

18. The lack of needle and syringe programmes, in particular, has a direct impact on the spread of HIV. People who inject drugs account for approximately 10 per cent of all new HIV infections and for up to 30 per cent of new HIV infections outside sub-Saharan Africa. Worldwide, an estimated 12.19 million people inject drugs, of whom 1.65 million are living with HIV.18 WHO has estimated, on the basis of data from 49 countries, that the average risk of HIV infection is 22 times greater among people who inject drugs than among people in the general population; in 11 of those countries, the risk is at least 50 times higher.19

19. Among the benefits associated with harm reduction programmes is the increased entry into HIV/AIDS treatment programmes (see A/65/255, para. 57). UNODC, WHO and UNAIDS have recommended that a comprehensive package of harm reduction services be integrated into national AIDS programmes, both as an HIV prevention measure and to support adherence to antiretroviral therapy services and medical follow-up for people who use drugs.20

20. One study compared countries that comprehensively and consistently adopted approaches based on harm reduction without punitive approaches with countries that steadfastly resisted the harm reduction programmes and focused instead on punitive approaches. It found that the prevalence of HIV among people who injected drugs in Australia, Germany, Switzerland and the United Kingdom of Great Britain and Northern Ireland was less than 5 per cent, whereas in the Russian Federation and Thailand HIV prevalence among people who injected drugs was over 35 per cent.21

C. Heath care in prison

21. Drug use, including by injection, has been consistently documented to occur in prisons throughout the world. High rates of sharing injecting equipment leads to an elevated risk of transmitting HIV in prisons. Persons in custodial settings are entitled, without discrimination, to the same standard of health care found on the outside, including with regard to prevention, harm reduction and antiretroviral therapy. Continuity of care is critical for those entering places of detention and who have been receiving treatment such as opioid substitution and antiretroviral therapy or treatment for tuberculosis, as interrupting such treatment has serious health consequences.22

22. The Special Rapporteur on the right to health has stated that if harm reduction programmes and evidence-based treatments are made available to the general public, but not to persons in detention, this contravenes the right to health. However, in 2014, while opioid substitution therapy was available in 80 countries, only 43 countries provided such therapy.He has also argued that, given the substantially higher health risks associated with incarceration, harm reduction programmes should be implemented and drug dependent persons should be treated so as to meet public health objectives, even if these services are not yet available in the community (see A/65/255, para. 60).

23. Health protection measures, including harm reduction measures, are effective in prisons and treatment programmes for people who use drugs, and are urgently needed in all prison settings.23 Drug dependence treatment has also been noted to be highly effective in reducing crime, as treatment and care within prisons, or as alternatives to imprisonment, reduce rates of relapse, HIV transmission and recidivism.24



D. Obstacles to achieving the right to health

24. The Special Rapporteur on the right to health has noted that drug users in States that criminalize drug use may avoid seeking health care for fear that information regarding their drug use will be shared with authorities, which could result in arrest and imprisonment, or in treatment against their will. The use of drug registries (lists of people who use drugs) may deter individuals from seeking treatment, especially given that violations of patient confidentiality have been frequently documented in States that maintain such registries (see A/65/255, para. 20, and A/64/272, para 23).

25. The Special Rapporteur has observed that criminalizing drug use and possession has led to risky forms of drug use designed to evade criminal prohibitions, which has in turn resulted in increased health risks for drug users. Risky forms of drug use may include the sharing of syringes and injection supplies, hurried or risky injecting and the use of drugs in unsafe places. The preparation of drugs in a hurry, to avoid detection by law enforcement officers, may increase the risk of overdose, vascular accidents and infections. The Special Rapporteur has noted that criminalizing drug use and possession may lead to an increased risk of illness, including from HIV infection, among people who use drugs (see A/65/255, paras. 25-26).

26. The Special Rapporteur has stated that these risks may be compounded by the drug user’s reluctance, for fear of arrest, to seek health assistance in preparing and injecting drugs. He noted that criminalizing drug use increases the risk of drugs becoming contaminated with harmful or even deadly substances (see A/65/255, paras. 25-26). He added that criminalizing the dissemination of information, including on safe practices pertaining to drug use and harm reduction, is not compatible with the right to health because it hinders individuals’ ability to make informed choices about their health.25

27. The Special Rapporteur has observed that some States opposed to harm reduction measures have criminalized the carrying of needles, syringes and other drug paraphernalia,26 in contravention of the International Guidelines on HIV/AIDS and Human Rights.27 Fear of arrest and criminal sanctions may deter individuals from participating in needle and syringe programmes and from carrying sterile equipment, which increases the likelihood of using unsterile equipment and transmitting diseases. Legislation penalizing the carrying of such equipment, including by outreach workers, is a barrier to HIV control.28 Promoting the use and supply of methadone, which is used in opioid substitution therapy, is a criminal offence in some countries.29

28. WHO has recommended decriminalizing drug use, including injecting drug use, as doing so could play a critical role in the implementation of its recommendations on health sector interventions, including harm reduction and the treatment and care of people who use drugs.30 UNAIDS too has recommended decriminalizing drug use as a means to reduce the number of HIV infections and to treat AIDS.31

29. The Special Rapporteur has identified many ways in which criminalizing drug use and possession impedes the achievement of the right to health. He has called for the decriminalization of drug use and possession as an important step towards fulfilling the right to health. He has noted that decriminalizing drug use cannot be equated with legalizing it. Decriminalization means that drug use and possession remain legally prohibited but that criminal penalties, if they are applied at all, are minor and of a non-custodial nature. Legalization, by contrast, involves no prohibition of the relevant conduct (see A/65/255, para. 62).

30. The Special Rapporteur has noted as positive the decriminalization experience in Portugal (see A/65/255, para. 64). In 2001, all drugs for personal use were decriminalized and drug use was characterized as an administrative offence. This was combined with an increased public health and social response to assist drug users. Portugal has not witnessed a material increase in drug use; in fact, indicators for certain groups show a decrease. Positive effects have included the destigmatization of drug users and the unburdening of the criminal justice system.32 The International Narcotics Control Board has indicated that the move to decriminalize drug use in Portugal was consistent with the 1988 Convention.33 In total, 22 States have adopted decriminalization measures of one kind or another, although not always on the grounds of promoting public health.34 The Special Rapporteur has indicated that decriminalization should be accompanied by an expansion in drug treatment programmes and drug education (see A/65/255, para. 67). On 26 June 2015, on the occasion of the International Day against Drug Abuse and Illicit Trafficking, the Secretary-General stated that consideration should be given to alternatives to criminalization and incarceration of people who use drugs and that there should be an increased focus on public health, prevention, treatment and care, as well as on economic, social and cultural strategies. Decriminalization has been called for by a number of civil society organizations on the grounds that criminalization poses a major obstacle to public health responses to drug users and their right to health.35



E. Access to essential medicines

31. In the preamble to the 1961 Convention, it is recognized that the medical use of narcotic drugs is indispensable for the relief of pain and suffering. Nevertheless, millions of people worldwide who require essential medicines for pain, drug dependency and other health conditions find that availability is often limited or absent. The Special Rapporteur on the right to health noted that access to these medications is often excessively restricted for fear that they will be diverted from legitimate medical uses to illicit purposes (see A/65/255, para. 41).

32. Restricting access to opioids affects not only the availability of opioid substitution therapy but also three unrelated areas where access to controlled medicines is essential: (a) management of moderate to severe pain, including as part of palliative care for people with life-limiting illnesses; (b) certain emergency obstetric situations; and (c) management of epilepsy (see A/65/255, para. 42).

33. In its general comment No. 14 (2000) on the right to the highest attainable standard of health, the Committee on Economic, Social and Cultural Rights stated that ensuring access to essential drugs, including opioids, is an essential element of the right to health and that States must comply with this obligation regardless of resource constraints. The Special Rapporteur has noted that access to controlled drugs is a critical part of the right to health and recommended that States increase access to controlled essential medicines (see A/65/255, paras. 40-47 and 76).

34. The International Narcotics Control Board has consistently found that availability of essential controlled medicines is too limited in many countries. In its 2014 annual report, the Board noted that approximately 5.5 billion people, or three quarters of the world’s population, live in countries where access to medicines containing narcotic drugs is low or non-existent and have inadequate access to treatment for moderate to severe pain. The Board also noted that 92 per cent of the world’s morphine (an opioid) is consumed by 17 per cent of the world’s population, primarily in North America, Oceania and Western Europe. The Board and WHO have both recognized that unnecessarily restrictive drug control regulations and practices are a significant barrier to accessing essential controlled medicines.36

III. Rights related to criminal justice

A. Prohibition of arbitrary arrest and detention

35. It has been alleged that police have sometimes targeted areas at or near drug treatment centres to make arrests.37 These practices may be linked to how law enforcement success is measured in efforts to counter drug use, especially where the number of arrests for drug use has been used as an indicator of successful law enforcement activity. It has been reported that in some countries the police obtain the health information of people who are registered with drug dependence treatment clinics and use that information for law enforcement purposes (see A/65/255, para. 20).38 In some countries, the police is reported to have targeted drug users to meet arrest quotas or to have harassed users for money or, in the case of women, sex.39

36. The Working Group on Arbitrary Detention has found that people who use drugs are particularly at risk of arbitrary detention (see E/CN.4/1998/44/Add.2, paras. 81 and 97-99, and A/HRC/27/48/Add.3, paras. 111-119). Some States reportedly provide for automatic pretrial detention for persons arrested for drug use without examining the circumstances of each individual case, although the Inter-American Commission on Human Rights has declared this practice to be incompatible with human rights.40 According to article 9 of the International Covenant on Civil and Political Rights, anyone arrested or detained on a criminal charge shall be promptly brought before a judge, which the Human Rights Committee has interpreted, in paragraph 33 of its general comment No. 35 (2014) on liberty and security of person, to mean a few days from the time of arrest, with 48 hours being ordinarily sufficient. There have been reports of persons detained for drug-related offences not being registered or promptly brought before a judge. In some States, an arrested person suspected of a drug-related offence can be kept in custody without being charged for a substantially longer time than a person detained for other offences can be.41



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