C Explanatory memorandum by Mr Joseph
O'Reilly, rapporteur for opinion
1. First of all, allow me to congratulate
Ms Hannah Bardell (United Kingdom, NR) on the timely report she has
prepared for the Committee on Legal Affairs and Human Rights. Her
report complements my own report on “Involuntary addiction to prescription
medicines”. I am very happy to see that the Legal Affairs Committee has
endorsed a rights-based approach to drug policy, building on the
Social Affairs Committee’s previous work on promoting public health
policy in drug control (see, in particular, Assembly
Resolution
1576 (2007)Note “For a European convention on promoting
public health policy in drug control”, and the Committee’s call,
in November 2015, for a public health oriented drug policy
Note).
2. As Ms Bardell has rightly pointed out in her report, the outcome
document of the UN General Assembly Special Session on the world
drug problem held in April 2016 (UNGASS 2016)
Note reaffirms the commitment by all UN
Member States in 2009 “to ensure that all aspects of demand reduction,
supply reduction and international cooperation are addressed in
[full respect for] all human rights”
Note. The document’s operational recommendations
have been further developed by the International Guidelines on Human
Rights and Drug Policy in 2019
Note. What is missing – including in some
of our Council of Europe member States – is the political will to
realise the commitment entered into and to implement the recommendations
made.
3. This is regrettable, since countries which have moved away
from the repressive “war on drugs” approach to a rights-based, public
health approach (such as Portugal), have fared much better than
countries which have held on to the old mantra, even when measured
using such simple indicators as drug related deaths. As proposed
by Ms Bardell, identifying more relevant indicators (which also
take into account the UN Sustainable Development Goals), could make
the benefits of a rights-based, public health approach even more
visible, and thus contribute to eroding opposition to it (Amendment D).
4. Much of the opposition to the “new” approach stems from myths
fed by lack of or inaccurate data; however, the rise of populism
and the far-right in recent years have also contributed to politicians
feeling the need to show they are “tough” on drugs and crime. Shifting
overall competence for the co‑ordination of drug policy from the
Ministry of Interior to the Ministry of Health (recognised by Ms Bardell
as good practice in her report) can be an important antidote (Amendment C).
5. It is also worth pointing out the importance of a public health
approach in all drug policy. Even human rights-compliant measures
can lead to negative public health outcomes: for example, criminal
justice responses to drug-related crimes may respect human rights,
legal guarantees and due process safeguards pertaining to criminal
justice proceedings, but nevertheless be the wrong approach to take
for young drug-dependent offenders. A public health approach would
yield more positive results for both the individual and society.
This is why it is paramount for drug policy to be reformed across
the Council of Europe to be both consistent with international human
rights standards and a public health approach (Amendments A, B, K, M, O, P).
6. Children’s rights are human rights, too – and children are
entitled to special protection. This also applies in the area of
drug policy and drug-related offences. Data on children is, however,
sometimes inaccurate, if it is collected at all, and not mixed in
with that of “young people”. Particular attention to obtaining and disseminating
gender- and age-disaggregated data on children’s drug use and related
harms and on the nature of children’s involvement in the illicit
drug trade is thus paramount (Amendment
E).
7. Of course, States should first of all prevent children from
falling victims to drugs or drug-related crime in the first place,
and should thus take all appropriate human-rights compliant measures,
including legislative, administrative, social, and educational measures,
to protect children from the illicit use of drugs, including by guaranteeing
the adequate availability and accessibility of prevention, harm
reduction and treatment services tailored to their needs, and to
prevent the use of children in illicit drug production and trafficking.
Education, health and other professionals should be adequately trained
to identify cases of drug involvement and to take necessary steps
when required (Amendments F, H).
8. If children do get involved with drugs, they should not be
criminalised because of their drug use or possession of drugs for
personal use, in line with the International Guidelines on Human
Rights and Drug Policy (March 2019) and as reiterated by the UN
Committee on the Rights of the Child. Children need to be protected from
drugs, and helped to stop using them, not criminalised if they use
them (or become dependent on them). Children easily become frightened
to ask for help for themselves or others, because criminalising
them means they fear arrest, shame, or prison – from a public health
point of view, criminalising children because of their drug use
is catastrophically counterproductive, leading to unnecessary deaths
and damage to their mental and / or physical health. Criminal records
alone ruin children’s education and employment prospects, while
prison time brutalises children and can make them into the hardened
criminals they never were before. If children commit other drug-related
crimes, they should be diverted from the criminal justice system
as much as possible – rehabilitation should take precedence over
punishment. Needless to say, where diversion from the criminal justice
system is not possible, the Council of Europe’s guidelines on child-friendly
justice
Note should be adhered to
(Amendment M).
9. The other proposed amendments aim at strengthening the text: Amendment G underlines the need
for objective and accurate information and education on the risks
of drugs. Amendment I recognises
the fact that drug dependence is not only a complex chronic medical
condition, but also, alas, a frequently relapsing one. Amendment J suggests that all
laws, policies and practices which have negative effects on the
voluntary and non-discriminatory access to good quality risk- and
harm-reduction and health services for drug-dependent people should
benefit from review, not only those which may have disproportionate
effects. Amendment L proposes
eliminating (rather than just prohibiting) the use of excessive
force and disproportionate sentencing against people who use drugs. Amendment N aims at strengthening
the fight against drug trafficking organisations and transnational
organised criminal groups.
10. In conclusion, I believe that the Assembly should fully support
the draft resolution and draft recommendation proposed by the Legal
Affairs Committee. Member States should assess whether the intended
and unintended effects of drug-related measures are consistent with
international human rights standards – and with a public health
approach – and adapt these measures accordingly. The Committee of Ministers
should adopt authoritative, comprehensive and concrete guidance
to member States in this area of policymaking, with meaningful participation
of all relevant stakeholders. And the Pompidou Group should be furnished
with a new mandate which fully supports a human rights – and public
health – approach to drug policy in Europe.
