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NEWS

UN OHCHR report highlights the impact of trial waiver systems and drug policy on human rights

admin - May 9, 2019 - trial waiver systems, UN Human Rights Council

 

At the 39th session of the UN Human Rights Council, the Office of the UN High Commissioner for Human Rights (OHCHR) presented its report on the ‘Implementation of the joint commitment to effectively addressing and countering the world drug problem with regard to human rights’, which noted the threat that trial waivers pose to human rights in the context of counter drug policies.

Last year, Fair Trials made a submission to the UN OHCHR that highlighted the impact that punitive drug policies and the global growth of trial waiver systems have had on human rights, and how these two forces have combined to drive mass incarceration. Overly punitive drug laws that have been enacted in many countries globally as part of the so-called ‘war on drugs’, have resulted in the criminalisation of possession of even minor quantities of drugs, and harsher sentences for drug-related offences. The report notes that a major obstacle to drug users accessing treatment is “the criminalization of personal use and possession of drugs. A study shows that over 60 per cent of people who inject drugs have been incarcerated at some point in their lives.” As a result of this, many states have looked to trial waiver systems – where defendants plead guilty and waive their right to a full trial – as a more efficient way of addressing the burden of the huge volume of cases faced by criminal justice systems.

However, as the OHCHR report highlights, “although trial waiver systems do succeed in moving multiple cases through criminal justice systems, the price is often less procedural protection and judicial oversight.” In 2017, Fair Trials’ report ‘The Disappearing Trial’ revealed that where proper safeguards are not in place, trial waivers can have a hugely negative impact on human rights. This includes an erosion of procedural protections, such as the right to access a lawyer, the right to disclosure of evidence, and proper judicial review.

Furthermore, as the OHCHR report notes, there is worrying evidence to suggest that in some jurisdictions, pre-trial detention is used as a ‘bargaining chip’ to coerce suspects into pleading guilty. This issue is exacerbated by the fact that in some countries, pre-trial detention is overused for drug related offences. For example, in some Latin American countries, pre-trial detention is mandatory for drug offences, despite the fact that international law clearly states that pre-trial detention should be an exceptional measure. Several recent studies have found that people held in pre-trial detention are more likely to plead guilty than those released on bail. Drug laws that require pre-trial detention can therefore increase guilty pleas, resulting in the criminalisation of suspects who have sometimes not had their cases properly scrutinised or had adequate access to a lawyer.

The OHCHR report notes that the overuse of pre-trial detention and disproportionately harsh sentencing for drug-related offences can result in prison overcrowding, which in turn can result in detainees being held in places that constitute cruel, inhuman or degrading treatment. The report recommends that “States should revise their penal policies and legislation with the aim of reducing minimum and maximum penalties and decriminalizing the personal use of drugs and minor drug offences, which would also contribute to reducing the total prison population.”

As the report demonstrates, states still have some way to go in addressing the threat posed to human rights by both overly punitive drug laws and a lack of safeguards in trial waiver systems, and how these two human rights issues intersect to drive overcriminalisation and mass incarceration.

For more information on human rights compliant safeguards in trial waiver systems, see our report ‘The Disappearing Trial’.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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