Seeking Alternatives to Repressive Drug Policies, Report on Regional Meeting

25-26 April 2016, Kiev, Ukraine

Eurasian Harm Reduction Network is happy to present a report on the Kiev regional meeting “Seeking Alternatives to Repressive Drug Policies”. The report is especially valuable in the context of the International Day against Drug Abuse and Illicit Trafficking, which is held on June 26, as it discusses not only the issues of criminalization of drug use and possession for personal use in CEECA, but also the solutions on the regional and country level. The report explains what needs to be done in CEECA to move from the slogan “Support. Don’t Punish” to a coordinated action among drug control services, law enforcement and the civil society.

1. Background

The international legal framework calls for unauthorized drug possession to be penalized, according to the seriousness of the offense, with prison or other criminal penalties to deter or punish those involved in the supply chain (United Nations Drug Conventions 1961, 1971, 1988). The international framework also states that users of drugs may be given, “as an alternative to conviction or punishment or in addition”, measures such as “treatment, education, aftercare, rehabilitation and social reintegration” — i.e. rehabilitative rather than deterrent or retributive responses (United Nations, 1961, as amended, Article 36(1)(b)). The United Nations General Assembly Special Session on Drugs (April 19–21, 2016) outcome document calls on Member States to:

“…(j) Encourage the development, adoption and implementation.. of alternative or additional measures with regard to conviction or punishment in cases of an appropriate nature, in accordance with the three international drug control conventions and taking into account, as appropriate, relevant United Nations standards and rules, such as the United Nations Standard Minimum Rules for Non-Custodial Measures (the Tokyo Rules);…

…(l) Promote proportionate national sentencing policies, practices and guidelines for drug-related offences whereby the severity of penalties is proportionate to the gravity of offences...”

In recent decades a wealth of evidence has been accumulated to question the effectiveness of the deterrence model that focuses on punishing drug users. A growing number of developed countries have been considering or implementing the rehabilitative measures of treating, educating or reintegrating drug users as alternatives or in addition to conviction or punishment. For example, a recent report by the European Monitoring Centre on Drugs and Drug Addiction (EMCDDA) provides a comprehensive overview of models and practices available in the European Union (EU).

The Central and Eastern Europe and Central Asia (CEECA) region remains the one with highest burden of injecting drug use and related HIV and hepatitis C (HCV) epidemics. In general, national drug legislations and law enforcement practices in the region have remained disproportionately repressive and have neglected human rights and public health perspectives of the response to drug use.

2. Objectives

The “Seeking Alternatives to Repressive Drug Policies” meeting was the first in a series of regional events to discuss alternatives to arrest, incarceration and other coercive sanctions used against drug-using offenders and/or against individuals who have committed non-violent drug-related offenses. The concept of the meeting and the complete agenda can be found in the  Annex 1.

3. Organizers and participants

The State Service of Ukraine for Drug Control, the United Nations Office on Drugs and Crime (UNODC), the Eurasian Harm Reduction Network (EHRN) and the International Renaissance Fund organized the meeting. A complete list of meeting participants can be found in Annex 2.

4. Key discussions

General overview of the situation and brief description of existing models of alternative measures to criminal sanctions for drug use/possession in CEECA

Discussions at the meeting focused on three areas: legal reforms and developing balanced drug policies; collaboration between the police and non-governmental organizations (NGOs); and implementation of alternative measures to punishment. However, over the course of the meeting, participants agreed that these were complementary areas of a common process and should be considered together.

The legal environment and policy implementation in many countries are far from what might be called a balanced approach. Drug use and/or possession for personal use are criminalized throughout the region. The majority of people incarcerated for possession of controlled substances serve prison terms for possession of drugs for personal use. Legislation in most countries does not contain provisions for alternative measures for drug offenders and/or people with substance use problems. Where such provisions exist, they are very rarely applied. Police resources are mostly devoted to targeting drug users and small-scale dealers. International experience suggests that countries with the best results in reducing drug-related harms are those where law enforcement focuses on reducing the capacity of criminal groups and the violence they commit, and where policies are inclusive and treat people with problems related to substance use as members of society.

Alternative approaches include establishing police partnerships with communities and addressing complex social issues. Collaboration between law enforcement agencies and civil society in the region is at the embryonic stage. Few examples of project-driven initiatives were presented.  

Details of country presentations on available models and the subsequent discussions are available in Annex 3. Additional details on the outcomes of the discussions are included in Section 6 (Recommendations).

5. Perspectives and challenges of introducing alternative measures in EECA states

There are a number of enabling factors for the introduction and implementation of alternative measures to punishment in the countries of the EECA [U1] region. First, the international drug control framework (UN Drug Conventions, UNODC position papers and statements, UNGASS 2016 outcome document) clearly provides options for the application of alternative measures: they support harm reduction, decriminalization of drug use and possession for personal use, alternatives to incarceration, and treatment and care instead of punishment. It is important to highlight that compulsory treatment is not supported.

Second, there is a sufficient amount of evidence and notable experience of implementation models and the effectiveness of alternative measures accumulated in the EU and other developed countries. These models provide various options for the application of alternative measures: prior to an offense (for example, when a person voluntarily seeks treatment); in the context of administrative law (instead of administrative punishment or as part of it); and within the criminal justice system (prior to a court hearing, as an alternative to punishment, or as part of the punishment).

Based on presentations by representatives of EU countries, it is evident that the implementation of alternative measures does not necessarily require additional investment. On the contrary, alternative measures are highly cost-effective, and providing health and social services is much less costly then sending people to prison and keeping them there. This could be a very important argument for the region. For a number of countries involved in the EU accession process, advocacy efforts should take advantage of relevant EU priorities and experiences. A number of articles (positions) in the EU Drug Strategy 2013–2020 might provide a useful resource for this type of advocacy.

UNODC has accumulated specific regional experience in developing relevant curricula for police academies (in Central Asia). This experience can and should be utilized and expanded to other countries. In addition, UNODC guidelines for establishing effective partnerships between law enforcement and civil society are a good resource.

The major challenges for the implementation of reforms in the region are related to restrictive laws, established law enforcement practices, lack of prioritization of drugs issues among decision-makers, and a lack of capacity in the health and social sectors to implement alternative approaches. In most of the countries, criminal laws need to be amended. This process has always been hindered by the strong opposition of orthodox legislators, the harsh attitude of law enforcement towards people who use drugs, and the reluctance of many decision-makers to actively engage in the sensitive and politicized area of drug control. Moreover, even with sensible provisions in the legislation, the situation in many countries is affected by problems at implementation level. It is too often the case that the police exploit vulnerable groups (drug users) to meet arrest targets and obtain information on other crimes: “for policemen any drug user is a potential criminal and a good source of information”.

Another challenge is to ensure (and convince decision-makers) that there is sufficient capacity in the health and social care sectors to accommodate people who would be diverted from the criminal justice system. In some countries, the perceived lack of this capacity and a perceived underdeveloped infrastructure have been named by the opponents as a major barrier to implementing drug law reforms. Regardless of the overall cost savings of implementing alternative measures, the initial stage of introducing reforms might require significant financial investment to build the care infrastructure.

6. Recommendations for the development of regional cooperation and for the provision of technical support

A number of recommendations emerged as a result of the discussions held at the meeting. They reflect existing problems and challenges related to countries’ drugs legislation, and realistically consider available options for moving the reform process forward. Three areas were discussed: legal reforms; collaboration between police and NGOs; and implementation of alternative measures to punishment. Participants agreed that these are complementary areas of a common process and should be considered together. 

What needs to be done?

Decriminalize the use and possession of small amounts of drugs for personal use, reform tables of quantities of psychoactive substances which are controlled under criminal acts, and introduce realistic and adequate quantities.
In most countries, drug use per se is not a criminal offense (with the exception of Georgia and Latvia). However, possession for personal use (with different thresholds for quantities) is criminalized throughout the region. As a result, a significant proportion of people sentenced for drug possession serve prison terms for possession of drugs for personal use. Countries’ legislation historically includes tables that set thresholds for considering amounts of seized substances as “small”, “large”, and “extremely large”. Criminal laws refer to these amounts and establish punishment measures — the larger the amount of the drug, the longer the prison term. A common issue is the extremely low thresholds defined in these tables and the resulting disproportionately harsh punishment for the vast majority of drug offenders. Therefore, the goal of legal reform should be to develop (and introduce) amendments to the legislation that would abolish criminal liability for drug consumption per se (where applicable), abolish criminal liability for possession of small quantities of drugs for personal use, and revise tables of quantities of psychoactive substances. In addition, it is necessary to ensure that tables and relevant articles speak of, and consider, pure (active) substances, not the often adulterated mixture that was seized. In cases where a country has already started to humanize its drug laws, an effort should be made to review related legislative acts, including the amendment of administrative procedures.

Improve the effectiveness of policing by refocusing it on the prevention of criminal behavior and on referral of drug law offenders to medical and social support programs, and by replacing criminal statistics indicators with targets for social reintegration and decreasing criminal behavior.
In a number of countries, the effectiveness of the police has historically been assessed based on the number of criminal cases reported and solved. This encourages police officers to meet their arrest targets by prosecuting drug-related offenses. Existing regulations make it an easy option — for example, a criminal case related to drug use (in Georgia) or drug possession would be opened only if the use and/or possession has been confirmed, and it will immediately be reported as solved. Both the criminalization of drug use and possession for personal use and arrest targets encourage police officers to focus on chasing drug users and/or low-profile drug sellers. As a result, a significant proportion of police resources are wasted on dealing with people and behaviors that do not represent a tangible threat to public security, which diverts those resources from tackling serious drug-related and other crimes. The Warsaw declaration provides the following recommendation in this regard:

“Police and other law enforcement agencies should not target people who use drugs for simple possession of small amounts of drugs intended for personal use. Indicators of policing success should be reviewed in order to deprioritise the policing of low-level drug offenders, and to improve public health outcomes, recognising that this in turn will improve public safety. This should be clearly defined through guidelines on policing best practice for law enforcement agencies, and effective cooperation mechanisms should be established between law enforcement agencies and health and social service providers. Law enforcement officials should be adequately trained and sensitised as to how best to respond to drug use and/or drug dependence and addiction, and be properly informed as to the availability of prevention and education programmes, harm reduction services, treatment and social services for people who use drugs, should they be required.”

Therefore, indicators of the effectiveness of policing should be linked to fighting organized drug crime and improving public health outcomes (linking individuals with drug-related problems to the relevant health and social services). At the level of legislation, this would require changing both laws (i.e. decriminalization) and internal police regulations. At the level of implementation, this will require establishing close partnerships with service providers and training police staff.

Introduce legislative changes that would allow the implementation of alternative measures to punishment.
Legislation in the vast majority of countries does not include options for providing non-criminal measures (education, treatment, rehabilitation) as an alternative to punishment for drug-related offenders and/or offenders with drug problems. Moreover, in those countries where such options are available they are largely ignored and not utilized — often due to both the lack of motivation from law enforcement and criminal justice institutions, and the absence of implementation mechanisms. Criminal sanctions (largely imprisonment) remain the major (often the only) intervention applied by the State while fulfilling its often-declared aim to reduce demand for illicit drugs.   

Develop practical mechanisms to implement alternative measures
The existence of alternative options to punishment in the legislation is not sufficient for their implementation. At least three other elements of the system should be developed for it to function effectively. Relevant operational protocols (manuals) and/or guidelines should provide clear and detailed descriptions of specific steps to be followed by the staff of partnering institutions/facilities (for example, police and NGOs; probation services and NGOs; courts, NGOs and addiction clinics). Staff of partner organizations need to be trained on the implementation of the guidelines and should have a good understanding of the rationale for the intervention (who benefits and how, including benefits to law enforcement and criminal justice systems). And, finally, where needed, financial resources should be available to cover the cost of alternative measures.

7. How?

To accomplish the objectives listed above, a number of specific activities were discussed by meeting participants.

Develop and accumulate scientific evidence of the effectiveness of alternatives to punishment.
Politicians and decision-makers should be provided with a solid and trusted evidence base in favor of alternative measures. These would include best international experience of the success of alternative approaches, as well as local/national data on the lack of effectiveness of criminal sanctions. Specific activities would include:

- developing (and making available in relevant languages) an overview of scientific literature and implementation reports related to the models and effectiveness of alternative measures (for example, the EMCDDA publication Alternatives to punishment for drug-using offenders);
- providing country-specific case studies and developing model legislation to be consulted in the process of legislative reform at national level; and
- implementing pilot projects on the feasibility and effectiveness of alternatives to punishment in countries of the region; this would include a solid and credible monitoring and evaluation component.

In current national legislation, explore existing opportunities for alternative measures, provide analysis of the reasons for limited implementation, and propose relevant legislative amendments (as necessary).
There is a need to engage with law enforcement agencies and discuss why some pieces of legislation might not work effectively for certain groups. This would result in proposals and specific actions to revitalize relevant regulations (instructions, ministerial orders, guidelines, manuals). The ultimate aim would be to ensure that every single option in the legislation is utilized.

Civil society organizations need to engage in dialogue and collaborate with government institutions.
Dialogue is extremely important and should engage all interested groups: legislators, law enforcement, the Ministry of Health, service delivery organizations, and NGOs. It is important to agree (acknowledge) that the problems being discussed are complex and cross-cutting and require multisectoral collaboration and response. Civil society organizations need to ensure that they are perceived by government institutions as credible partners and are willing (and able) to work constructively. Specific recommendations for civil society groups include:

- be constructive — when challenging government policies, immediately propose solutions;
- ensure that these solutions include tangible benefits to the public, beneficiaries and government institutions; and
- be proactive in recruiting supporters from the wide range of stakeholders (public sector, service providers, academia, community groups, media).

Provide education and capacity-building to law enforcement and criminal justice staff, and identify funding sources for technical assistance.
The critical element of the reforms in terms of effectiveness and sustainability will be the introduction of education modules into the curricula of police academies. Topics/subjects should include, but not be limited to: human rights, drug dependence, risk reduction and the role of the police in improving public health outcomes, and establishing partnerships between the police and civil society organizations. In addition to intervening with formal education, there is a need to develop and implement short-term training for judges, prosecutors, and probation services. Again, it is critical to involve all relevant agencies in the multisectoral response. Constructive dialogue with government institutions is a necessary precondition for that to happen. The goal would be to encourage relevant authorities to support the introduction of specific topics into education programs for the police, and the mobilization of resources (technical and financial) for developing educational modules and conducting training in all countries in the region. UNODC, EHRN and the Ukrainian Alliance were suggested as possible sources for such assistance. These (and other) providers of technical assistance will need to engage with donor countries for potential financial support.

Ensure that there are national budgets for implementing alternative measures to punishment.
Where treatment and support programs are sufficiently developed and funded the introduction of alternative measures will not require additional financial investment. In fact, they will bring about certain cost savings in the criminal justice system, since drug-related public health interventions are significantly less costly and more cost-effective. However, in many countries in the region, drug-related health systems are underdeveloped and underfunded, and non-governmental service providers are not recognized by the State as partners. The absence of alternatives (treatment and rehabilitation facilities/capacities) might be a common barrier to implementing reforms. Therefore, the critical challenge in many countries will be to work with the government and advocate for increased funding to support the development of infrastructure (staff knowledge and skills, facilities, quality standards, etc.).

Establish a mechanism for regular regional cooperation.
There was insufficient discussion on the prospect of regional collaboration, including making it possible for decision-makers to learn about best practices in drug policy. CND was suggested as a possible platform for regional collaboration on alternatives to punishment and the proportionality of drug-related criminal measures in the region. EHRN will need to take a lead and propose a simple and practical mechanism for regional collaboration. The challenge here would be to make this mechanism useful and attractive to all relevant parties. Involving UNODC and working jointly on this task would be a good option for EHRN and its country partners.