Legal Analysis

Fair Trials responds to Commission on alternatives to coercive punishment for drug-related offences

Published: (Last updated: )

Fair Trials has provided feedback to the European Commission on its proposed recommendation on the implementation of alternatives to coercive sanctions as response to drug law offences and drug-related crimes.

Fair Trials welcomes the effort to change the existing responses to drug use and drug-related criminality. Currently in the absence of appropriate public health-based responses to drug use, it is a major contributing factor for why people encounter the criminal justice system. The proposed Recommendation attempts to suggest alternative responses in two different situations – people who have committed drug law offences and people who have committed offences related to drugs. Given Fair Trials’ work as a criminal justice watchdog, our intervention focuses on how to promote genuine alternatives to criminal and other coercive sanctions and appropriate responses to drug addiction among incarcerated people.

Decriminalisation of drug use and possession

Appropriate responses to drug use should be centred around the recognition that drug addiction is a health issue and recovery is a lengthy process that may involve relapse as a normal part of the process. Criminalisation of drug use and possession for personal use is necessarily tied to punishment (including incarceration, fines, public service, compulsory treatment or other types of punishment). Punishment does not serve a health objective. Therefore, the promotion of a health-centred approach must start with the decriminalisation of drug use and possession for personal use, which should not be subject to coercive processes or sanctions in any form.

Decriminalisation of drug use also means that it should not be classified as a minor offence or subject to any simplified punitive process. Simplified procedures such as trial waiver systems or administrative punishment do not remove coercive punishment but apply it in another form. Administrative fines can have deeply damaging consequences, especially for people experiencing poverty.

In the context of drug-related offences, treatment should not be made into a legal obligation, whereby the failure results in punishment. Drug treatment and absence of relapse should not be conditions for suspending a sentence and should not be supervised by probation or similar judicial or law-enforcement institution. Relapse is often a part of the recovery process and should not be punished as a failure to comply with court-ordered conditions.

Empowering health and social services

States must be required to invest in appropriately trained and equipped services established for the specific objective of providing the care that may be required.

Where law enforcement authorities are involved in a situation involving drug use or possession for personal use, they must be required to divert the situation to health and social services. The primary mandate of police and other law-enforcement authorities is to enforce public order and investigate potential offences. The techniques and practices used to fulfil those tasks are inextricably linked to the use or potential use of force, including arrest, the collection of information, evidence and other accusatory practices. As such, law enforcement is not in a position to offer genuine non-coercive alternatives to situations involving drug use, which in the majority of cases do not involve an immediate threat to public safety. Therefore, responding to calls of drug use in public and similar situations should be primarily entrusted to health or social care professionals who have appropriate training and means to assist people in need.

Assistance to incarcerated people

If a person with drug addiction is already incarcerated or otherwise in contact with the criminal justice system (e.g. for drug-related crimes) they need to be provided the necessary support to treat their addiction. Professionals other than law-enforcement officials need to carry out an individualised assessment of the person’s needs and involve appropriate support, including medical care or assistance by civil society.

Prisons, where people are deprived of their fundamental right to liberty, are inherently coercive and focus on punishment rather than care. People with drug addictions in prison are in a coercive environment, and currently face a lack of access to medical professionals with appropriate specialisation, lack of medication required for treating addiction, lack of facilities appropriate for providing and participating in a voluntary therapy process. However, creating “alternative” facilities other than prisons should not serve to expand the existing prison facilities or further fund the criminal justice system. In this respect, directly impacted groups and communities should be meaningfully involved at every step of reform.

We welcome a continued discussion on the Commission in relation to this important initiative.