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Pike, Brigid (2016) Drug users’ human rights. Drugnet Ireland , Issue 58, Summer 2016 , pp. 6-7.

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Just what are the rights of drug users and how can legislators, policy makers, law enforcers and service providers ensure their rights are taken into consideration? In 2015 the Irish Council for Civil Liberties (ICCL) produced its first paper considering the drugs phenomenon from a human rights perspective, and in particular human rights as defined in the European Convention on Human Rights (ECHR).1

 

Right to life (Art 2 ECHR)

With an average 600 drug-related deaths every year,2 Ireland has almost four times the overall European Union (EU) average. ICCL identifies six harm reduction measures to help reduce this number, some of which have already been, or are in the process of being, introduced, and some of which are under discussion.

 

Prohibition of torture and inhuman or degrading treatment or punishment (Art 3 ECHR)

According to ICCL, persons with drug problems suffer considerably and their health is eroded by street drugs and by drug-taking practices, and there is also transmission and high prevalence of blood-borne viruses among the drug-using population. Compounded by the stigmatisation associated with substance misuse, ICCL suggests that these and a range of other conditions can be perceived by the persons suffering them as inhuman or degrading. Policies focusing on drug use as a health problem rather than a criminal problem might strike a better balance in addressing these human rights concerns.

 

Drug use may be the result of lack of access to palliative treatment or failure by service providers to respond to the real or perceived somatic or mental health needs or conditions of the user, for example undisclosed traumatic experiences such as abuse suffered during childhood, that render a person more vulnerable to problematic substance use. ICCL invites policy makers to examine the degree to which suffering might be reduced or prevented, and non-medical use of prescription drugs or use of illegal drugs reduced, if doctors were to have greater prescription freedom, subject only to professional standards, without a criminal policy inspired gatekeeping role and associated sanctions for doctors perceived as over-prescribing psychoactive substances.

 

Prohibition of forced labour/slavery (Art 4 ECHR)

Drug policies that stigmatise, marginalise and exclude users often push them into the hands of persons who exploit them sexually or otherwise in situations that are tantamount to forced labour, sometimes modern slavery. ICCL asks whether different policies would eliminate these situations, and if so, does this raise questions from a human rights perspective. Although not under the potential scope of Article 4, ICCL notes that working conditions and work-place environments may be conducive to drug use. This may occur because of work-related stress, unreasonable performance objectives or demands, or an excessively competitive atmosphere. Performance enhancement drugs can also lead to problematic use.

 

Right to liberty and personal freedom (Art 5 ECHR)

Using UN estimates, ICCL points out that there may be around 30 million occasional drug users in the EU, and some 5 million problematic drug users. However, the EMCDDA reported only 1.25 million drug offences in the EU in 2014. Of these, 781,000 were for cannabis use and a further 223,000 involved use of other drugs; cannabis supply amounted to 116,000 recorded offences, with supply of other drugs accounting for 86,000 and other offences 42,000 criminal cases. Based on these figures, ICCL suggests that the application of criminal law to drugs is uneven and therefore risks being discriminatory. If use were punished systematically, ICCL asserts it would mean criminalising within the EU the equivalent of seven times the population of the Republic of Ireland, or more than once its population if only problematic users were targeted.

 

The ICCL asks whether drug-related criminal law fails on three counts:

  • its vocation of general non-discriminatory application, while drug trafficking continues to be rampant despite considerable law enforcement efforts;
  • its purpose of preserving public health given the scale of the drug problem and the reported collateral damage of drug policy; and
  • its purpose of protecting children.Right to private life, freedoms of thought, expression, association (cf. Arts 8, 9, 10, 11 …) 
  • Referring to the right to private life, ICCL suggests this right arguably extends to enjoying an experience of one’s choice, including those that alter one’s mental perceptions or state of consciousness, especially if it does not transcend to the public or endanger others. ICCL goes on to point out that the interdiction of such activities (in terms of their mind-altering power) would be contrary to Article 8, unless provided for in law ‘in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’. The objective pursued would have to be demonstrably necessary in a democratic society and the interference proportionate. ICCL goes on to suggest that policy makers might wish to take such matters into account when considering decriminalisation and the home-growing of cannabis. 

Prohibition of discrimination (Art 14 ECHR)

ICCL notes that drug laws affect far more people in disadvantaged communities than in other communities, although drug use is roughly the same across all communities. It also notes that some people argue that subordinating the treatment of substance use disorders to criminal policy or related moral considerations, as compared to other self-inflicted conditions that remain a purely medical matter, is also discriminatory. Examples of self-inflicted medical conditions that don’t attract a criminal charge include tobacco-related cancer, alcohol-related diseases, diet-related hypertension, certain cases of diabetes, extreme sport-related injury or even suicide attempts.

 

ICCL suggests that these biases can affect access to and the modalities of palliative, substitution or maintenance treatment for substance use disorders, and invites policy makers to consider whether current drug policies that hinge on criminal law and repression (a) have an unnecessary, undesirable or discriminatory impact on the delivery of health care for persons suffering from substance use disorders, and (b) place the persons concerned in significantly less favourable conditions for access to and quality of treatment than people who suffer from other self-inflicted medical conditions.

 

 

1 Irish Council for Civil Liberties (2015, 6 August) Submission to the Houses of the Oireachtas Joint Committee on Justice, Defence and Equality on the review of Ireland’s approach to the possession of limited quantities of certain drugs. Retrieved 28 April 2016 https://www.drugsandalcohol.ie/25444/

2 Health Research Board (2015) Drug-related deaths and deaths among drug users in Ireland: 2013 figures from the National Drug-Related Deaths Index. Dublin: Health Research Board. https://www.drugsandalcohol.ie/24676/

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