Skip Page Header

Home > Legal issues in relation to consumption rooms.

Connolly, Johnny (2004) Legal issues in relation to consumption rooms. Drugnet Ireland , Issue 11, June 2004 , pp. 15-16.

[img]
Preview
PDF (Drugnet Ireland, issue 11) - Published Version
342kB

The International Narcotics Control Board (INCB) is responsible for reviewing whether drug policies adopted by countries bound by the three international drug control conventions, comply with those agreements. The relevant treaties are the 1961 United Nations Single Convention on Narcotic Drugs, the 1971 UN Convention on Psychotropic Substances and the 1988 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.

Citing Article 4 of the 1961 Convention, which obliges states to ensure that the ‘trade in, use and possession of drugs’1 is limited exclusively to medical and scientific purposes, the INCB states in its annual report for 2003 that facilities ‘where injecting drug abusers can inject drugs that they have acquired illicitly’ are, ‘from a legal point of view’2 in violation of the international drug control conventions. 

In Ireland, the Misuse of Drugs Act (MDA) 1977 and 1984 and the Regulations made thereunder ensure Ireland’s compliance with its obligations under international law. Section 3 of the original Act renders it a criminal offence to be in possession of a controlled drug. Section 16 prohibits the smoking or other use of prepared opium3 or the frequenting of a place used for the purpose of smoking or otherwise using prepared opium,4 while section 19 prohibits a person from knowingly allowing another to possess illicit drugs on premises under his or her control.5 Despite a number of provisions within the legislation for the Minister to grant exemptions to the law regarding possession in certain circumstances,6 as things currently stand, drug consumption rooms, where drug users could consume drugs obtained illicitly, would be in direct contravention of Irish domestic law. 

Despite criticism from the INCB, a number of other state signatories to the UN conventions have adopted various legal measures to facilitate the establishment of drug consumption rooms. In doing so, they have tested the application of international law in this area.

In Switzerland, following the establishment of a number of state-controlled consumption rooms, a legal opinion commissioned by the Swiss Federal Office for Public Health (FOPH) concluded that such facilities did not violate Swiss law ‘as long as the rooms improve the hygienic conditions under which consumption takes place and provide medical supervision and no drug dealing takes place’.7 A further opinion commissioned by the FOPH considered the legality of such facilities in relation to the three relevant international treaties. This opinion, carried out by the Swiss Institute of Comparative Law, concluded that, in the absence of any clear guidance in the treaties on the utility of ‘public injecting rooms’ with regard to the ‘rehabilitation and social reintegration of drug addicts in the short term and to the reduction of human suffering and the elimination of financial incentives for illicit traffic in the long term’, it must be concluded that ‘state parties retain the freedom to make their own policy choices on the tolerance of Fixer-Stubli (public injecting rooms)’. Furthermore, it was argued, ‘State parties are not obliged by the conventions to prosecute and punish the possession and consumption of drugs (other than those psychotropic substances listed in Schedule 1 to the 1971 convention.’ 

In this respect, Switzerland may be seen to be relying on what is referred to as the ‘expediency principle’.8 This arises under Article 3, paragraph 2 of the UN Convention of 1988 whereby each party is obliged to establish drug possession for personal consumption as a criminal offence ‘subject to its constitutional principles and the basic concepts of its legal system’. This principle is used by some countries to discourage prosecution of certain crimes, such as possession of cannabis for personal use for example. 

In a legal opinion commissioned by the Strasbourg-based think tank, the Pompidou Group, Professor Dr Brice De Ruyver argues that ‘there is no clear guidance in relation to the compatibility of injecting rooms with international law’ and that countries may apply the ‘expediency principle’ when establishing drug consumption rooms ‘in order to avoid violating international laws’. He adds however, ‘that governments are not allowed to invoke this expediency principle whenever they would like to deviate from the international provisions’. De Ruyver concludes that ‘inasmuch as injecting rooms are extreme forms of risk reduction, some doubts can appear about the fidelity to the convention obligations’ which require a ‘loyal enforcement’.9 

In Germany in 1993, an assessment of the legal implications of supervised injecting facilities commissioned by the health authorities of the city of Frankfurt concluded that ‘the operation of such facilities was not a punishable offence either under any German laws or according to UN conventions, provided that the sale, acquisition or passing on of drugs/narcotic substances are not tolerated and that hygienic, stress-free and risk-reduced drug consumption is ensured through adequate care and control’.7 The issue remained controversial in other parts of Germany however. Consequently, in April 2000, the German parliament introduced an amendment to the narcotics legislation which now leaves it to the discretion of individual states whether or not to issue such facilities with a licence. Licences, where they are granted, are generally contingent on compliance with a range of minimum standards defined by law. These standards relate to such measures as, for example, adequate medical standards, the availability of abstinence-oriented follow-up counselling, measures to prevent criminal offences other than possession of drugs for personal use from occurring in or surrounding such premises, restrictions on the age, type of drug and level of addiction of the user attending the facilities. 

In the Netherlands, legal guidelines issued in 1996 clarified that the possession of drugs in consumption rooms is tolerated ‘provided the facilities fit into the local policy framework defined by the local triumvirate of mayor, police and public prosecutor’.7 In Spain, supervised injecting rooms operate on the basis of local public health regulations. 

In Sydney, Australia, and in Canada since 2003, supervised injecting rooms operate on the basis of scientific trials or pilot programmes which must comply with ongoing evaluations and specific licensing conditions in order to continue in operation. 

It has been argued that, as harm reduction strategies, including drug consumption rooms, become an increasing element of policy in a number of states, so they have the potential to become increasingly acceptable under the UN treaties. Following a recent review of the UN drug conventions regime and alternatives for reform, Andenas and Spivak concluded that ‘the preferred approach is one that is premised on collective action by a group of countries with a shared reform agenda. Such collective action paves the way for various legal techniques which provide potentially wide scope for modifying the drugs Conventions’.10 However, with regard to drug consumption rooms, the preconditions established in specific countries will determine whether these strategies qualify as legitimate harm reduction practices. A difficulty which arises here however, is that, at present, there is no clear consensus between states on what precisely ‘harm reduction’ is. As the INCB highlights in its recent report: ‘The conventions do not contain, refer to or define ‘harm reduction.’11 

1 Article 4, subparagraph 1 (c), United Nations Single Convention on Narcotic Drugs 1961.
2 International Narcotics Control Board (2004) Report 2003. United Nations Publications.
3 Section 16 (1) (a) Misuse of Drugs Act (1977)
4 Section 16 (1) (b) Misuse of Drugs Act (1977)
5 Section 19 (1) (i) Misuse of Drugs Act (1977)
6 Part III Misuse of Drugs Regulations (1988)
7 This discussion of legal approaches taken in countries where drug consumption rooms are in operation is derived from Hedrich D (2004) European Report on drug consumption rooms. Lisbon: EMCDDA pp.15–19.
8 De Ruyver B (2000) Legal (Pre) Conditions and control mechanisms with regard to risk reduction. Strasbourg, Pompidou Group P-PG/MIN/CONF (2000) 2.
9 Ibid p.14.
10 Andenas M and Spivak D (2003) The UN Drug Conventions Regime and Policy Reform. Legal opinion prepared by the British Institute of International and Comparative Law (BIICL).
11 International Narcotics Control Board (2004) Report 2003. United Nations Publications p.36.

Repository Staff Only: item control page