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.33In 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