The Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment submits his third report to the Human Rights Council. The Special Rapporteur focuses on the compatibility of the death penalty with the prohibition of cruel, inhuman and degrading punishment discusses a human rights-based approach to drug policies.
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He concludes that the historic interpretation of the right to personal integrity and human dignity in relation to the death penalty is increasingly challenged by the dynamic interpretation of this right in relation to corporal punishment and the inconsistencies deriving from the distinction between corporal and capital punishment, as well as by the universal trend towards the abolition of capital punishment. The Special Rapporteur invites the Council to request a comprehensive legal study on the compatibility of the death penalty with the right to personal integrity and human dignity.
In chapter IV, he discusses a human rights-based approach to drug policies, concluding that drug users are often subjected to discriminatory treatment and that States have a positive obligation to ensure the same access to prevention and treatment in places of detention as outside them. He recommends that the Council take up the question of drug policies in the light of international obligations in the area of human rights at a future session.
Conclusions and Recommendations
71. With regard to human rights and drug policies, the Special Rapporteur wishes to recall that, from a human rights perspective, drug dependence should be treated like any other health-care condition. Consequently, he would like to reiterate that denial of medical treatment and/or absence of access to medical care in custodial situations may constitute cruel, inhuman or degrading treatment or punishment and is therefore prohibited under international human rights law. Equally, subjecting persons to treatment or testing without their consent may constitute a violation of the right to physical integrity. He would also like to stress that, in this regard, States have a positive obligation to ensure the same access to prevention and treatment in places of detention as outside.
72. Similarly, the Special Rapporteur is of the opinion that the de facto denial of access to pain relief, if it causes severe pain and suffering, constitutes cruel, inhuman or degrading treatment or punishment.
73. To address the many tensions between the current punitive approach to drug control and international human rights obligations, including the prohibition of torture and cruel, inhuman and degrading treatment, the Special Rapporteur calls on the Human Rights Council to take up the question of drug policies in the light of international obligations in the area of human rights at one of its future sessions.
74. Regarding the review process, decided by the General Assembly at its special session in 1998, to be held in Vienna in March 2009, the Special Rapporteur recommends that States and the relevant United Nations agencies reassess their policies, bearing in mind the following points:
(a) States should ensure that their legal frameworks governing drug dependence treatment and rehabilitation services are in full compliance with international human rights norms;
(b) States have an obligation to ensure that drug dependence treatment as well as HIV/hepatitis C prevention and treatment are accessible in all places of detention and that drug dependence treatment is not restricted on the basis of any kind of discrimination;
(c) Needle and syringe programmes in detention should be used to reduce the risk of infection with HIV/AIDS; if injecting drug users undergo forcible testing, it should be carried out with full respect of their dignity;
(d) States should refrain from using capital punishment in relation to drug-related offences and avoid discriminatory treatment of drug offenders, such as solitary confinement;
(e) Given that lack of access to pain treatment and opioid analgesics for patients in need might amount to cruel, inhuman and degrading treatment, all measures should be taken to ensure full access and to overcome current regulatory, educational and attitudinal obstacles to ensure full access to palliative care.