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D. Right to a fair trial

42. In some States, law enforcement responsibility for drug-related offences has been reportedly shared with or transferred to the military, often resulting in an excessive use of violence.51 It has been reported that people accused of drug-related offenses have been tried before military courts or special courts that may fall short of fair trial standards.52 Concerning the trial of persons in military or special courts, the Human Rights Committee has said that civilians should be tried in the ordinary courts, subject to narrowly defined exceptional circumstances, and that the protections of the International Covenant on Civil and Political Rights cannot be limited or modified because of the military or special character of the court.53

43. In some States, it has been reported that accused persons may be given a choice between serving a sentence after conviction or submitting to drug treatment. Bearing in mind the right of a person to refuse treatment, this practice may be a cause for concern, in particular given the level of coercion involved.54 Some States subject individuals to additional penal measures unless the treatment is successful, ignoring the particular circumstances of each individual’s condition and that treatment for drug dependence has been characterized by medical professionals as often involving relapse on one or more occasions or requiring several types of treatment.55 The Working Group on Arbitrary Detention has determined that when treatment is undertaken as an alternative to incarceration, under no circumstances may it extend beyond the period of the criminal sentence (see A/HRC/4/40/Add.2, para. 74).

44. Some States do not allow persons convicted for drug-related offences to be considered for suspended sentence, parole, pardon or amnesty that are available to those convicted of different crimes.56 The Working Group on Arbitrary Detention has recommended that States amend their laws if they include provisions to that effect (see A/HRC//4/40/Add.3, para. 102 (c)).

45. The focus on arresting and imprisoning drug users for possession or use small amounts has often resulted in prolonged pretrial detention, and persons convicted of drug-related offences frequently constitute a very high percentage of total prisoners in many countries. Mandatory sentencing and disproportionately long sentences for drug possession or use have often resulted in sentences longer than those for serious crimes such as murder, rape, kidnapping or bank robbery, and have contributed to overincarceration and prison overcrowding.57 The Working Group on Arbitrary Detention has called for reform to ensure that sentences for drug-related offences are proportionate to the nature of the crime (see E/CN.4/2003/8/Add.3, paras. 44 and 72 (a), A/HRC/4/40/Add.4, paras. 47 and 87, and A/HRC/22/44/Add.2, para. 125). The Working Group has found that overincarceration for drug-related offences contributes significantly to prison overcrowding and that overcrowding can call into question compliance with article 10 of the International Covenant on Civil and Political Rights, which guarantees that everyone in detention shall be treated with humanity and respect for their dignity (see E//CN.4//2003/8/Add.3, para. 44, A/HRC/4/40/Add.3, para. 64, and A/HRC/4/40, paras. 59-80).




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