International Guidelines on Human Rights and Drug Policy
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II. Obligations arising from human rights standards

7. Freedom from arbitrary arrest and detention

Everyone has the right to liberty and security of the person and therefore to freedom from arbitrary arrest and detention. No one shall be deprived of liberty except on such grounds and in accordance with such procedures as are established by law. Such rights apply equally to any person known to have used drugs or suspected of drug use, as well as to anyone suspected of a drug-related offence.

In accordance with this right, States shall:

i. Ensure that people are not detained solely on the basis of drug use or drug dependence.

ii. Ensure that pre-trial detention is never mandatory for drug-related charges and is imposed only in exceptional circumstances where such detention is deemed reasonable, necessary, and proportional.

In addition, States should:

iii. Guarantee that people arrested, detained, or convicted for drug-related offences can benefit from the application of non- custodial measures – such as bail or other alternatives to pre-trial detention; sentence reduction or suspension; parole; and pardon or amnesty – enjoyed by those who are arrested, detained, or convicted of other crimes.

iv. Prioritise diversion from prosecution for persons arrested for drug offences or drug-related offences of a minor nature.

v. Prioritise non-custodial measures at the sentencing and post-sentencing stages for persons charged with or convicted of drug offences or drug-related offences of a minor nature.

vi. Ensure that, where treatment is court mandated, no penalties attach to a failure to complete such treatment.

vii. Ensure that treatment for drug dependence as an alternative to incarceration is undertaken only with informed consent and where medically indicated, and under no circumstances extends beyond the period of the applicable criminal sentence.

viii. Take immediate measures to close compulsory drug detention centres where they exist, release people detained in such centres, and replace such facilities with voluntary, evidence-based care and support in the community.

Commentary:

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