Proportionality is one of the key principles of the rule of law aiming to protect people from cruel or inhumane treatment. The principle has been established in international and regional human rights agreements and many countries have adopted reflections of it in their constitution or penal code. Its application to drug-related offences is firstly the responsibility of the legislators, in defining the level of penalisation of certain behaviours. The level of penalisation should be determined according to the severity of damage that a certain behaviour causes to others or to society.
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In the second instance, the courts and judges have to apply the principle of proportionality in defining the appropriate punishment for a particular case; and finally, proportionality also plays a role in the execution of this punishment. This briefing paper looks at specific criteria of proportionality developed in the context of drug control and describes a number of recent attempts to recalibrate the often grossly disproportionate nature of current drug laws and their enforcement around the world.
The core requirement of proportionality is that an individual’s rights and freedoms may only be limited to the extent that it is appropriate and necessary for achieving a legitimate aim. Such standards further require that of the range of available options for restricting an individual’s rights and freedoms in order to achieve a legitimate aim, the option that is least intrusive to fundamental rights should be adopted. In the context of drug offences, a legitimate aim of punishment should correspond with the basic objective of the UN drug control conventions: to improve the health and welfare of mankind. As a result, a proportionate sentence for a drug offence should be determined in accordance with the potential harm that a controlled substance may cause to the health and welfare of a community.
The principle of proportionality is understood in international law as an essential means for safeguarding fundamental human rights. Unfortunately, its application has often been limited to scaling the severity of punishment without questioning in principle the need to inflict a punishment at all – a problematic limitation, especially in the context of the contemporary drug policy debate where punishment is no longer assumed to be a necessary response for all drug-related activities. Applying the principle of proportionality to drug control should transcend any predisposition towards punishment per se. The trend towards decriminalisation of possession for personal use is a clear example that abstaining from punishment may well be the most appropriate outcome of a proportionality check of drug laws and sentencing practices for certain drug-related activities.
• Governments should review their laws, sentencing guidelines and practices for drug offences to evaluate their compliance with existing standards of proportionality.
• A proportionality check should consider as an option that activities relating to certain acts or substances may be dealt with outside the realm of criminal law. For example, the possession, purchase or cultivation of drugs for personal use should not constitute offences.
• Proportionate sentencing frameworks should distinguish between the type of drugs and the scale of the illicit activity, as well as the role and motivation of the offender : serious or organised traffickers; micro-traffickers (low-level dealers or smugglers); people dependent on drugs; and people who use drugs occasionally (or ‘recreationally’).
• For drug-related offences committed due to drug dependency or to meet basic economic needs, services such as treatment, education, aftercare, rehabilitation or social integration should be offered as more humane, effective and proportionate alternatives to conviction.
• For micro-trafficking offences, reduced or provisional sentences, as well as alternatives to imprisonment, should be promoted. The socio-economic circumstances in which an offence was committed and the financial gains of the offender should be considered as important mitigating factors.
• Ensuring the consistent application of proportionate sentencing laws and guidelines should include addressing institutional biases against drug offenders, for example amongst judges.
• The death penalty for drug offences should be entirely abolished.