“Drugs and Human Rights” Research Cent

Ricardo Soberón
rsoberon@tni.org
tel/fax: (511) 2425381

Proposal: US$ 90,200
Proposal for the Open Society Institute

Lima, June 2009 – June 2010

1. Executive Summary

The “
Drug Law Reform in South America” Project is focused on the functioning of the State penal system in South American countries, where controlled substances are produced, transformed, transported and consumed. In its first stage, the project centers on the law designing process at the Congress and the functioning of the penitentiary system.  In the second stage, it will be centered on the Police, the Public Ministry and the functioning of the Judiciary.

The objectives of the Project are the following:
 
1. To make evident the negative impact which has been brought about by the  traditional criminal policies resulting from the system of international treaties, its conflict with the regulations of international instruments on matters of Human Rights, and the need to bring about diverse proposals (administrative, civil, penal, educational, sanitary) which, under the philosophy of harm reduction, of proportionality and selectivity, may effectively respond to the problems  deriving from the phenomenon of the production, traffic and consumption of  so-called illicit drugs.

2. To encourage actions, and propose and support initiatives that may allow a well proportioned, rational use of criminal policy and the criminal law, in cases related to drug-trafficking, as última ratio, in the conformation of a responsible law, respectful of acknowledged international human rights standards and which will help to set in order the police, judicial and penitentiary systems.

The expected results are:
 
- 90 state officials attending two workshops and a dialogue organized by CIDDH Centro de Investigación “Drogas y Derechos Humanos” – “Drugs and Human Rights” Research Center (justice officials, police officers, Public Ministry, Congress members, penitentiary agents),
- CIDDH participation, in at least one process of analysis, debate and, as a result, possible future changes generated within the sphere of drug legislation (search for selectivity, discretionary sentencing, proportionality);
- 2 entities (academic, legal, and/or professional) with which institutional relationship is maintained in order to favor Drug policies changes in South American countries;
- 10 written articles, reports, and documents published in written and or audiovisual media, disseminated publicly, that promote the principles for harm reduction, proportionality and selectivity in the field of the legal control of drugs;
- Increase in the level of parliamentary debate in the discussion of parliamentary initiatives on Drug Control.
The activities consist of a permanent process of follow-up and sistematization of penitentiary statistics in two countries in South America; two Workshops with judiciary members in countries where a legal reform on drugs is being carried out (Bolivia and Ecuador); a public campaign in Peru; Round-table dialogue in Argentina and/or Venezuela and advocacy by means of visits, articles and the use of electronic media.

2. Problem Analysis.

The incorporation of the dispositions in the Conventions of 1961, 1971 y 1988 on drugs, especially article  3 of the latter , constitute the external source  of the way in which Latin American States have responded to the illicit drugs problem.

The penitentiary system in the countries of South America is at present absolutely over-extended and over-used as a consequence of the widely extended use and abuse made of it by the State and diverse Governments over the past 20 years. When we refer to the criminal system as a whole, we refer to the persecutory and preventive faculty of the State (the police, and the gendarmerie, city halls), the investigatory faculty (public prosecutors, Public Ministry, attorneys’ office), the judicial faculty itself, and even more evident, the general penitentiary system, and more concretely, the system for teenagers and the cases of infringements or violations.

A series of distortions are generated at the different levels, as a consequence of the poor formulation of legislative policies. In South America, more than one and a half million people are imprisoned; more tan half of them have no sentence; a third part of them are in jail because of crimes related to the so-called “illicit drug trafficking.”  In the case of drug crimes, the percentage of women is much higher in comparison to other crimes.

In Latin American countries, the incidence of drug crimes is, on average, between the third and fourth place (30/35%), with respect to the other crimes considered by the general criminal system; they include all acts related to the production, trafficking and consumption of substances declared illicit.  It is only surpassed by crimes related to property and patrimony, and this is due to structural problems regarding the deficiency and marginalization in which an important sector of the population is found:  Latin America has 106 million youngsters between 15 and 24 years old; from them, 10 million are unemployed and 16 million do not study nor search for a job.

Regrettably, an analysis of the tendencies of the legislative reform processes that have been undertaken in the countries subject matter of this Project, confirms a fact: society, the press and politicians have continued trusting the penal control system as the only and/or most important response of the State to face the problems. In spite of all its progress – including helping to alleviate the functioning of the Justice Administration (Chile, Colombia, Bolivia, Peru) -- the processes of Penal Procedural Reform carried out in the decade of the 90’s, has not  corrected the main problems derived from a partial, arbitrary and disproportionate vision of drug problems.

During recent years, the great majority of revised cases show cycles of reform  which have mainly determined the increase in the penal system and  planning (crimes, figures, overtaking), if not in the disproportionate increase of the main and accessory punishments.  In spite of those efforts, it has not been possible to improve the capacity of the State to stop the impacts of organized crime, such as the Mexican case. Therefore, the main axis/problems that must be addressed within the Project, in Latin American countries, are:

• The present sanctioning of consumption and/or possession for consumption;
• Excess in detention (prior to trial, no lawyer, no accusation, excessive prolongation)
• Arbitrary definition of the lists of substances under control, including the reversion of the present status of the Coca Leaf plant in the lists under the treaties;
• Respect of the basic principles related to penal rights in Latin America;
• Application of the principles, instruments and mechanisms related to harm reduction in the field of public health, and in the field of justice administration;
• Search for greater selectivity to apply penal control on cases of organized crime and leave producers and consumers aside, and allow the application of benign penalties in the less important cases (micro-commerce)
• Reduction of penalties of the imprisoned population in general and of the population with no sentence, in particular;
• Application of procedural and penitentiary benefits, without unfair discrimination;
• Permanent application of the general framework of human rights and minimum rules and standards for the treatment of prisoners.

Meanwhile, even though some agencies of the U.N. promote some changes,  this is not yet being put into practice.  Such is the case of the International Narcotics Control Board (INCB) report for the year 2007, in reference to the need for responding to the criteria of proportionality when exercising the administration of justice, in its first chapter.  On the other hand, the UNODC promotes: “The main challenges in this area (criminal justice) are over reliance on detention, including pre trial detention, coupled with very poor prison conditions in many countries; the lack of criminal justice strategies taking into account victims of crime and the need to reintegrate offenders into society.”

In recent years, in Europe, and North and South America, public health has been adopting Harm Reduction measures in the field of drug-addiction treatments as a prompt answer to the multiple collateral problems that such addictions may cause (supply of syringes, sexual transmission and intravenous diseases). Until the international community as a whole or each country, individually, dare to make decisions different to traditional ones, in order to solve the problems that arise from the cycle of drugs and applied policies, it is necessary to think of specific measures in the field of law enforcement.
 
It is within this complex and dramatic context that the need arises to promote the execution of measures destined to make visible the negative impact of international policies on drug control in the diverse Latin American countries.   For this purpose, the CIDDH is presenting, for its approval and execution, the  Project on “Legal Reform on Matter of Drug Control”, and commits itself to obtaining the results described in this Project. 

The creation of CIDDH, with its head-office in Lima, Perú, has been promoted by the Transnational Institute (TNI) and the Washington Office on Latin America (WOLA), evolving from the project on Informal Drug Policy Dialogues in Latin America, scheduled until May 2010.  The three institutions foresee a close collaboration, formalized through an “Agreement of Understanding” to be formalized once we have formalized our juridical constitution.

3. Project Description and Objectives

The following are the objectives of the Project on “Drug Law Reform in South America.”
3.1. To make evident the  negative impact which has been brought about by the  traditional penal policies resulting from the system of international treaties, its conflict with the regulations of international instruments on matters of human rights, and the need to bring about diverse proposals (administrative, civil, penal, educational, sanitary) which, under the philosophy of harm reduction, proportionality and selectivity, may effectively respond to the problems  deriving from the phenomenon of the production, traffic and consumption of so-called illicit drugs.

3.2. To encourage actions, propose and support initiatives that may allow a well proportioned, rational use of criminal policy and penal law, in cases related to drug-trafficking, as última ratio, in the conformation of a responsible law, respectful of acknowledged international human rights standards and which will help to set in order the police, judicial and penitentiary systems.

The Project “Drug Law Reform in South America” will initially act on two of the five fields of the penal circuit in South American countries (Congress, Police, Public Prosecutors, Justice and Prisons) where we have identified existing problems which must be faced and worked on so as to find effective changes in the state penal control.  These are critical when we address the subject on drug crimes:  (i) the process of formulating legislation and (ii) impact on the situation in prison.

i) The Process of Formulating Legislation. 

In this field, regarding legislative aspects, we must observe:

A first subject of interest is in the international sphere. On the one hand, we have the incorporation of the drug treaties (1961, 1971, 1988), and its constitutionality; on the other, we have coherence with other international obligations of the signatory States, such as is the case of human rights; in that sense, it is necessary to find coherence between the dispositions and the mechanisms, procedures and institutionality of human rights at the U.N., in particular the United Nations Council for Human Rights, the Office of the United Nations High Commissioner for Human Rights, and the functioning of the Universal Mechanism of Periodical Revision.  In the field of drug control itself, a second aspect of interest is to observe the development, evolution and grade of commitment to the principle of Shared Responsibility. Finally, an effective follow-up must be carried out, monitoring of the processes of follow up of the international system on drug control and its diverse impacts in Latin America.

The next step is the constitutional analysis on the dispositions of the Constitutional Charters that are related to matters of drug control, starting from the right to health services  and to education, to the judicial guarantees and exceptional regimes. Such is the case of the recent Constitutional Charters of Ecuador and Bolivia.

In third place, a vital aspect of the problem is the existence of special laws on drugs , which incur in a series of generalities, ambiguities and contradictions, beginning by their frequent lack of constitutional coherence (primary criminalization). The cases of Venezuela , Ecuador, Bolivia and Argentina, are examples where there are efforts underway to change the traditional legislation of the war against drugs and where we find original and important points of view that intend to attack the problems mentioned on page 2 of this Project.

The enormous pressure that the social and media demands represent -- asking for a “strong hand” to confront the problem without taking into consideration degrees, magnitudes and responsibilities -- is the starting point of the permanent increment in the penal approach,  and must be object of analysis, debate and evaluation of its consequences and costs regarding human rights’ violations as well as with respect to the system’s overload.
 
The problem with reference to the classification of substances, which are subjected to different degrees of control, from the administrative to total prohibition, is that it includes licit/illicit drugs, legal/illegal drugs, hard/soft.  One last matter related to the legislative field refers to the need to influence the existing laws related to the production, trafficking and consumption of the coca leaf and other plants with psychoactive qualities (cannabis, poppy, san pedro, yagué, ephedrine).

As important as the configuration of the penal control and the judicial and penitentiary application are the stages of secondary criminalization, meaning the functioning of the agencies in charge of enforcing the law (Police, Public Ministry, Judiciary), which will be subject matter of the second stage of  this legal reform project.

ii) The Penitentiary System:

The penitentiary system in Latin America is in crisis, reproducing a model of institutional violence which is mainly directed against those who could be trapped in the penal system.

The flow of prisoners due to drug crimes represents one of the main causes for congestion and overcrowding. Despite the different magnitudes in the imprisoned population –Brazil and México on the one hand, with penitentiary populations over 100,000 people and Ecuador , Venezuela  and Bolivia, on the other, with populations of around 10,000/20,000 prisoners-, the situation in Latin American prisons is characterized by similar problems: overpopulation, overcrowding,  budget shortfalls and poor infrastructure. 

It is therefore necessary to obtain and provide permanent information about the the penitentiary model and imprisonment for drug-trafficking crimes, and to mornitor information and statistics provided by official organisms,  in spite of the frequent absence of updated information.

The study, follow-up and alerts regarding imprisonment conditions, should aim to promote the possibilities and reality for rehabilitation as the most favorable aim or purpose of the penitentiary system.  An immediate factor refers to the constant prohibition of penitentiary benefits to prisoners for drug crimes (release from prison, reductions in sentencing, provisional liberty).

Another element refers to the possibilities/needs of separating the prisoners for drug crimes, according to the gravity of the crime committed.  Likewise, it is necessary to supervise the conditions of infrastructure in prisons. Finally, the project intends to follow-up on the functioning of agreements for the repatriation of those who have been convicted.
 
The following three elements will be object of a more specific development in a second stage of this Project, after 2010.

iii)The Police Forces:

In a second execution phase of the project  we must  work on the conditions by which the police in South American countries carry out activities related to preventing, investigating and controlling crimes associated with drug-trafficking, in its diverse modalities.   The functions, mandates (new missions) and forms of operation of the police departments’ duties in South American countries must be reviewed, especially in reference to arrest, detention, determination of the crime and police records.  Another relevant aspect refers to the functioning and results of urban safety associated to drug problems. It is necessary to look for alternative answers rather than repressive ones, to face problems related to delinquency and urban insecurity, particularly stemming from micro-commerce and sale of drugs declared to be illicit.

iv) Penal Investigations:

The project aims at working on the capacities and faculties of the Public Ministry/Public Prosecutor in =carrying out their role as criminal investigators.  In some countries like Bolivia and Peru, there even are public prosecutors specialized in controlled substances, who tend to hand down harsh sentences rather than take into account issues of proportionality and ensuring that the sentence is commensurate with the gravity of the crime committed. We are specifically interested in making a link between the principle of legality which requires the public prosecutor to pursue the crime, versus the principle of opportunity. 

Other issues include the capacity of the public prosecutors to define the procedural situation, the application of the principle of opportunity, the making of the report using investigation instruments, utilization of principles and mechanisms that may allow more selectivity, emphasizing the role of the public prosecutor as a defender of human rights and legality.

v) The Judiciary:

Various institutions working on the penal situation in Latin American countries have established the need for an effective monitoring on the functioning of the penal justice system  in the field of drug control. A number of questions arise: Is the system being effective in preventing these crimes? The functioning of the efforts on the Penal Procedural Reform applied in Latin America in the 1990’s and first decade of the XXI century must be evaluated, particularly on the treatment of crimes for controlled substances. Which are the weaknesses of the system to fight organized criminal networks? It is important to review and analyze the functioning of judicial guarantees in drug processes, emphasizing due process, respect for the presumption of innocence and the right to adequate defense (functioning of Public Defenders).  Among the main problems to be detected and corrected is the unjustified delay in detention, and the problem of prisoners with no sentence.

Another circumstance experienced in some countries in the region (Colombia , Peru, Argentina) is the existence of special regimes that grant facilities,  --  such as amnesty, exemption, delivery, demobilization (law of 2005, of Justice and Peace), peace processes, under determined political circumstances in each country -- and that may end being absolutely arbitrary, unfair and infringing upon minimum standards of due process, as well as leaving aside the rights of the victims in the conflict . Nevertheless, except for the Ecuadorian case, there do not seem to be enough possibilities for discrimination and selectivity for drug crimes in South American countries.

Activities.

After the culmination of the constitution phase of the Association “Drugs and Human Rights”, the first stage of the Project on “Drug Law Reform in South America” will begin. The following punctual or permanent activities are proposed:

1. Collection, systematization, comparison, analysis of statistics and penitentiary policies regarding the functioning of the penal system, related to drug control for 2 countries in the region (to be decided between Ecuador/Bolivia and Brasil/Argentina, respectively) that may be helpful providing supporting evidence for the need for deep changes in drug legislation  (trainees and one publication);
2. Organization of 2 Workshops for proposal discussion, in Bolivia and Ecuador,  with juridical authorities from each country (judges, police, lawyers, public prosecutors, penitentiary agents), to discuss the functioning and inform about any possible changes that are required by the agencies they belong to, in the frame of the drug policy reform process that their countries are experiencing. (second publication);
3. Carry out a Public Campaign in Peru involving professional schools and universities, in favor of an alleviation of the existing penal system, looking forward to the obtainment of  less indiscriminate arrests, more procedural and penitentiary benefits, amnesties and/or exemptions-- all in order to promote  higher levels of selectivity and  proportionality.
4. Proposal for a Round-table Discussion and/or Debate, with officials,   jurists, lawyers, politicians, and legislative members  in order to discuss and agree on proposals for legislative reform in Argentina or Venezuela (to be determined), with the participation of  members of parliament and advisors.
5. Critical collaboration and support for the creation of  draft legislation in an Andean country (Bolivia and/or Ecuador) to be presented with parliamentary support in the respective Congress for its debate and approval;
6. Creation and diffusion of two publications (bulletins, pamphlets, books, reports, printed, electronic and audiovisual), in the fields that are subject matter of the present project:  one on the follow-up to penitentiary statistics of two South American countries and the other related to changes that may advance the legislative reforms underway in Bolivia or Ecuador;
7. Advocacy with parliamentary commissions, and the Ministries of Justice in two of the affected countries.

Execution Chronogram (second trimester 2009 through second trimester 2010).