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Which are the most relevant international and regional human rights standards related to harm reduction?

Overview

A variety of human rights standards at the international and regional levels applies to harm reduction. These standards can be used for many purposes:
  • To document violations of the rights of people who use drugs
  • To advocate for the cessation of these violations
  • To sue governments for violations of national human rights laws
  • To complain to regional and international human rights bodies.
In the tables on the following pages, examples of human rights violations related to harm reduction are provided. Relevant human rights standards are then cited, along with examples of legal precedents interpreting each standard.

How to read the tables

As you read through each table, ask yourself the following questions about the violations, standards, and precedents and interpretations that are cited:

EXAMPLES OF HUMAN RIGHTS VIOLATIONS

Do any of these violations occur in your country? Are there other violations of this human right that exist in your country?
HUMAN RIGHTS STANDARDS

Are these violations prohibited by the "human rights standards"? Can the standards be interpreted to apply to this violation?
PRECEDENTS AND INTERPRETATIONS

Do any of the "examples of precedents and interpretations" apply to this issue? Can they be interpreted to apply to this issue?

Remember that human rights law is an evolving field, and that many human rights violations are not directly addressed by existing legal standards and precedents. Through ongoing documentation and advocacy, advocates can build a stronger body of jurisprudence on harm reduction and human rights.

Abbreviations

In the tables, the seven treaties and their corresponding enforcement mechanisms are referred to with the following abbreviations:

Treaty Enforcement Mechanism
International Covenant on Civil and Political Rights
(ICCPR)
Human Rights Committee (HRC)
International Covenant on Economic, Social, and Cultural Rights (ICESCR) Committee on Economic, Social and Cultural Rights (CESCR)
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW Committee)
Convention on the Rights of the Child (CRC) Committee on the Rights of the Child (CRC Committee)
African Charter on Human and People’s Rights (ACHPR) & Protocols African Commission on Human and People’s Rights (ACHPR Commission)
[European] Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) European Court of Human Rights (ECtHR)
European Social Charter (ESC) European Committee of Social Rights (ECSR)

Also cited are the former Commission on Human Rights (CHR) and various UN Special Rapporteurs (SR) and Working Groups (WG).

Table 1: Harm reduction and the right to life

Examples of Human Rights Violations
  • A government authorizes or fails to investigate the murder of suspected drug traffickers as part of a crackdown on drugs.
  • An ambulance refuses to respond to a drug overdose because the underlying activity is “illegal”.
  • A government imposes the death penalty for drug-related offenses.
  • Drug users die in locked hospital wards, such as the Moscow fire incident in December 2006.
Human Rights Standards Precedents and Interpretations
ICCPR 6(1) Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

(2) In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court.

ACHPR 4 Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.

ECHR 2(1) Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
HRC: Expressed concern over the extrajudicial killing of people who use drugs. Also stated definitively that capital punishment for drug offences is in violation of the ICCPR (Thailand, 2005).

SR Health: expressed concern that the Anti-Narcotics Campaign [in Thailand], coupled with limited access to harm reduction services, had inadvertently created the conditions for a more extensive spread of [HIV] in Thailand” (2005).

Table 2: Harm reduction and freedom from torture and cruel, inhuman and degrading treatment, including in prisons

Examples of Human Rights Violations
  • Police or security officials officers beat and injure people suspected of using drugs.
  • Investigators force drug suspects into unmedicated withdrawal in order to extract confessions.
  • A government imposes lengthy mandatory prison sentences for minor drug-related offenses.
  • Persons convicted of drug offenses are detained, imprisoned, or committed to treatment in overcrowded and unsanitary facilities, without access to medical services.
  • Drug users are denied mental health treatment while in prison, jail, or drug treatment.
Human Rights Standards Precedents and Interpretations
ICCPR 7 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

ICCPR 10(1) All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

ACHPR 5 Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.

ECHR 3 No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

See also:
  • Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment (1987)
  • European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (1989)
  • Code of Conduct for Law Enforcement Officials (1979)
  • Standard Minimum Rules for the Treatment of Prisoners (1955)
HRC: expressed concern about high rates of HIV and TB in Ukraine, and recommended that Ukraine provide hygienic facilities, assure access to health care and adequate food, and reduce the prison population, including by using alternative sanctions (2006).

SR Violence Against Women: expressed concern that the U.S. was “criminalizing a large segment of its population” through drug charges, increasingly women, and that many of these offenses “may be more appropriately handled by a community-based system of welfare and social support, as is presently the case in certain European countries.”(1999).

ECtHR: Held that refusal of medical treatment to an HIV-positive detainee held on drug charges violated article 3 {Khudobin v. Russia, 2007}; that forcing a drug suspect to regurgitate to retrieve a balloon of heroin violated article 3 {Jalloh v. Germany, 2006}; and that the UK government breached article 3 by failing to provide necessary medical care to a heroin dependent woman who died in a UK prison while serving a four-month sentence for theft {McGlinchey and others v. UK, 2003}.

Table 3: Harm reduction and freedom from arbitrary arrest and detention

Examples of Human Rights Violations
  • Drug users are arrested or detained based on planted evidence or evidence obtained through an illegal search or seizure.
  • Drug users are imprisoned on criminal charges without a fair trial.
  • Drug users are committed to forced treatment or detoxification without their consent.
Human Rights Standards Precedents and Interpretations
ICCPR 9(1) Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

ACHPR 6 Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.

ECHR 5(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

See also:
  • Code of Conduct for Law Enforcement Officials (1979)
  • Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990)
  • Reports of the UN Commission on Human Rights Working Group on Arbitrary Detention (2003-2005)
HRC: has held that protections under art. 9 apply to all forms of detention, including for “drug addiction” {General Comment 8, paragraph #1}); has expressed concern in Mauritius that bail is not allowed for persons arrested or held in custody for the sale of drugs, urging the government to “review the Dangerous Drugs Act in order to enable judges to make a case-by-case assessment on the basis of the offence committed” (2005); has expressed concern in Ireland about the 7-day period of detention without charge under the Drug Trafficking Act (2005).

CRC: has expressed concern in Brunei Darussalem “that children abusing drugs may be placed in a closed institution for a period of up to three years” and recommended that the government “develop non-institutional forms of treatment of children who abuse drugs and make the placement of children in an institution a measure of last resort.” (2003).

WG Arbitrary Detention: from 2003-2005, has: expressed concern about arbitrary detention of “drug addicts” and “people suffering from AIDS;” recommended that persons deprived of their liberty on health grounds “have judicial means of challenging their detention;” concluded that bail conditions can be difficult to meet for people who use drugs; and recommended that states prevent over-incarceration of vulnerable groups.

ECtHR: held that unjustified pre-trial detention of an HIV-positive detainee for one year and 23 days breached article 5(3) {Khudobin v. Russia, 2007}

Table 4: Harm reduction and the right to a fair trial

Examples of Human Rights Violations
  • An individual is convicted of drug charges after having been lured into committing a drug offense by an undercover police officer.
  • A detainee is kept in pre-trial detention for drug charges for an unreasonable length of time.
  • An individual is convicted on a drug offense without trial.
  • An individual is convicted of a drug charge based on evidence obtained during an illegal police search of his or her home.
Human Rights Standards Precedents and Interpretations
ICCPR 9(3) Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. . .

(4) Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

ACHPR 7 1. Every individual shall have the right to have his cause heard. This comprises: (a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force; (b) the right to be presumed innocent until proved guilty by a competent court or tribunal; (c) the right to defence, including the right to be defended by counsel of his choice; (d) the right to be tried within a reasonable time by an impartial court or tribunal.

ECHR 6(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. . .

(2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
ECtHR: Held that where the activity of undercover agents instigates a drug offence and there is nothing to suggest the offense would have been committed without the police’s intervention, this constitutes “incitement,” and evidence obtained as a result cannot be used against a defendant. {Vanyan v. Russia, 2005, Teixeira de Castro v. Portugal, 1998}.

Applying these cases in 2007, the ECtHR held that a Russian trial court should have considered evidence that a defendant facing drug charges had been entrapped by the police, especially considering that he did not have a criminal record and the only allegations of his involvement in drug dealing came from a police informant. {Khudobin v. Russia, 2007}.

Table 5: Harm reduction and the right to privacy

Examples of Human Rights Violations
  • Police are authorized to arrest or detain people based on suspected drug use, without having to prove possession or trafficking of drugs.
  • Police are authorized to test the urine of anyone suspected of using drugs.
  • Doctor discloses a patient’s history of drug use or addiction without consent.
  • Clinic shares lists of registered drug users with law enforcement.
  • Police raid the home of a suspected drug user without evidence or judicial authorization.
Human Rights Standards Precedents and Interpretations
ICCPR 17(1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

ECHR 8(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
CRC: expressed concern in Armenia at the criminalization of young drug users, and urged the government “to ensure that child drug abusers are not criminalized, but treated as victims in need of assistance towards recovery and reintegration.” (2004).

ECtHR: Held that strip searching and examination of a mother and her mentally disabled son who were attempting to visit another brother in prison constituted a violation of article 8 {Wainwright v. United Kingdom, 2006}.

Table 6: Harm reduction and freedom of expression and information

Examples of Human Rights Violations
  • Drug users are denied information about HIV prevention, harm reduction, and safer drug use.
  • Government bans publications about drug use or harm reduction, claiming they represent propaganda for illegal activity.
  • Government officials harass or detain individuals who speak publicly in favor of needle exchange, methadone, or other harm reduction measures.
  • NGOs are compelled to oppose harm reduction as a condition of government funding for work on HIV prevention.
Human Rights Standards Precedents and Interpretations
ICCPR 19(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

ACHPR 9 (1) Every individual shall have the right to receive information.

ECHR 10(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

(2) Every individual shall have the right to express and disseminate his opinions within the law.

See also:
  • CRC 13
CRC: has concluded that adolescent’s right to information about HIV and AIDS is part of the right to information {General Comment 3, paragraph #4}; has called on Panama to “provide children with accurate and objective information about substance use, including hard drugs and tobacco, and protect children from harmful misinformation,” as well as to “strengthen its efforts to address adolescent health issues…[including those] to prevent and combat HIV/AIDS and the harmful effects of drugs” (2003); has expressed concern in Estonia at “the increasing number of HIV-infections among injecting drug users” and encouraged the government to continue its efforts to provide children with accurate and objective information about substance use” (2003).

Table 7: Harm reduction and freedom of assembly and association

Examples of Human Rights Violations
  • Public authorities refuse to register a drug user association.
  • Police break up a peaceful demonstration against drug laws.
Human Rights Standards Precedents and Interpretations
ICCPR 21 The right of peaceful assembly shall be recognized.

22(1) Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.

(2) No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

ACHPR 10 Every individual shall have the right to free association provided that he abides by the law
11 Every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided for by law in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others.

ECHR 11 Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
According to research conducted for this Table, no regional or international human rights body has applied the protection of freedom of assembly and association to the context of harm reduction.

Table 8: Harm reduction and the right to bodily integrity

Examples of Human Rights Violations
  • A suspected drug user is abused by police.
  • Police fail to investigate a case of domestic violence against a drug-using woman.
  • Doctors compel a drug-using pregnant woman to undergo an abortion.
  • Police fail to investigate the assault or murder of a person suspected of using drugs, blaming it on “gang violence”.
Human Rights Standards Precedents and Interpretations
ACHPR 4 Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.

Note: The right to bodily integrity is not specifically recognized under the ICCPR or ICESCR, but has been interpreted to be part of the right to security of the person, to freedom from torture and cruel, inhuman, and degrading treatment, and the right to the highest attainable standard of health.

Similarly, the right to bodily integrity is not specifically recognized in CEDAW, although CEDAW has been widely interpreted to include the right to protection from violence against women.
WG Enforced or Involuntary Disappearances: has noted that, “An aspect of disappearances that has been underreported in the past and continues at the present time relates to the way in which acts of disappearance are perpetrated in conjunction with other gross violations, with targets drawn from among the most vulnerable groups in society…. Common examples brought to our notice were: disappearances, combined with “social cleansing,” the urban poor, the unemployed, and the so-called “undesirables,” including prostitutes, petty thieves, vagabonds, gamblers and homosexuals as the victims” [emphasis added].

Table 9: Harm reduction and the right to non-discrimination

Examples of Human Rights Violations
  • A person is denied work, housing, health care, education, or access to goods and services due to actual or suspected drug use.
  • Police disproportionately arrest migrants and racial minorities for drug offenses.
  • People who use drugs are underrepresented in HIV treatment programs despite accounting for a majority of people living with HIV.
Human Rights Standards Precedents and Interpretations
ICCPR 2(1) Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

ICCPR 26 All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

ACHPR 2 Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.

ECHR 14 The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
Committee on the Elimination of Racial Discrimination: has recommended that governments “should pay the greatest attention to the following possible indicators of racial discrimination:… The proportionately higher crime rates attributed to persons belonging to those groups, particularly as regards petty street crime and offences related to drugs and prostitution, as indicators of the exclusion or the non-integration of such persons into society” (2005).

SR Health: expressed concern in Romania that “the stigma associated with commercial sex work and injecting drug use, for example, affects how people engaged in these activities are often treated by health-care workers, especially when requesting services such as tests for sexually transmitted infections” and encouraged the government to combat discrimination that creates barrier to services (2005).

Table 10: Harm reduction and the right to the highest attainable standard of health

Examples of Human Rights Violations
  • Drug users or suspected drug users are turned away from hospitals or treated with stigma and judgmental attitudes in the health system.
  • Government officials ban needle exchange programs or confiscate syringes from drug users, claiming they promote illegal activity.
  • Government bans substitution therapy with methadone.
Human Rights Standards Precedents and Interpretations
ICESCR 12(1) The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

12(2) The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:… (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases.

ACHPR 16 (1) Every individual shall have the right to enjoy the best attainable state of physical and mental health.

(2) States Parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick.

See also:
  • CEDAW 12(1)
  • CRC 24(1)
CESCR: has noted that non-discrimination is an “underlying determinant of health,” including non-discrimination on the basis of “health status,” which should include drug addiction.

CESCR: expressed concern in Tajikistan with “the rapid spread of HIV…in particular among drug users, prisoners, sex workers,” and recommended that the government “establish time-bound targets for extending the provision of free testing services, free treatment for HIV and harm reduction services to all parts of the country” (2006).

CRC: has commented that governments “are obligated to ensure the implementation of programs which aim to reduce the factors that expose children to the use of substances, as well as those that provide treatment and support to children who are abusing substances” (General Comment 3).

SR Health: expressed concern in Romania that “the stigma associated with commercial sex work and injecting drug use, for example, affects how people engaged in these activities are often treated by health-care workers, especially when requesting services such as tests for sexually transmitted infections” and encouraged the government to combat discrimination that creates barriers to services (2005).

Table 11: Harm reduction and the rights of women and children

Examples of Human Rights Violations
  • Women are denied access to harm reduction services on an equal basis with men.
  • Pregnant women who use drugs are forced to undergo abortions or sterilization, or are penalized for attempting to injure their child.
  • Young people who use drugs are denied factual information and services about safer injection and harm reduction.
Human Rights Standards Precedents and Interpretations
ICCPR 3 The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.

24 (1) Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.

ACHPR 18 (3) The State shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions.
(4) The aged and the disabled shall also have the right to special measures of protection in keeping with their physical or moral needs.

See also:
  • CEDAW 12(1)
  • CRC 24(1)
CRC: has identified that, “Children who use drugs are at high risk [of HIV]” and that “injecting practices using unsterilized instruments further increase the risk of HIV transmission;” has also stated that governments “are obligated to ensure the implementation of programmes which aim to reduce the factors that expose children to the use of substances, as well as those that provide treatment and support to children who are abusing substances” (General Comment 3, paragraph #39); has made country-specific recommendations on children who use drugs in Armenia (2004), El Salvador (2004), Sao Tome and Principe (2004), Indonesia (2004), Brunei Darussalem (2003), Panama (2003), Estonia (2003), Ukraine (2002), and St. Vincent and the Grenadines (2002).

SR Violence Against Women: expressed concern that the U.S. was “criminalizing a large segment of its population” through drug charges, increasingly women, and that many of these offenses “may be more appropriately handled by a community-based system of welfare and social support, as is presently the case in certain European countries” (1999).

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