Strasbourg, 29 September 2000                                                        P-PG/MIN/CONF (2000) 2

LEGAL (PRE)CONDITIONS AND CONTROL MECHANISMS

WITH REGARD TO RISK REDUCTION

Discussion paper

prepared by Professor Dr Brice DE RUYVER

University of Ghent

NB: This paper contains a legal study drafted under the sole responsibility of its author. Its purpose is to stimulate the debate and it does not represent in any way an agreed position of the Pompidou Group.

Table of contents

             I.      Summary-------------------------------------------------------------------------------------- p. 3

          II.      Technical report on the legal (pre)conditions and control mechanisms

with regard to risk reduction------------------------------------------------------------- p. 4

A.     Introduction----------------------------------------------------------------------------- p. 4

B.     Exchange and distribution of syringes-------------------------------------------- p. 4

1)      Short description-------------------------------------------------------------------- p. 4

2)      Questions at stake------------------------------------------------------------------ p. 5

3)      Compatibility with international treaties---------------------------------------- p. 5

4)      Specific legislation----------------------------------------------------------------- p. 6

5)      Sub-conclusion--------------------------------------------------------------------- p. 7

C.     Heroin prescription-------------------------------------------------------------------- p. 7

1)      Short description-------------------------------------------------------------------- p. 7

2)      Questions at stake------------------------------------------------------------------ p. 7

3)      Compatibility with international treaties---------------------------------------- p. 7

4)      Specific legislation----------------------------------------------------------------- p. 9

5)      Sub-conclusion-------------------------------------------------------------------- p. 10

D.     Methadone maintenance therapy------------------------------------------------- p. 10

1)      Short description------------------------------------------------------------------ p. 10

2)      Questions at stake----------------------------------------------------------------- p. 10

3)      Compatibility with international treaties-------------------------------------- p. 10

4)      Specific legislation---------------------------------------------------------------- p. 11

5)      Sub-conclusion-------------------------------------------------------------------- p. 12

E.     Shooting/injecting rooms------------------------------------------------------------ p. 12

1)      Short description------------------------------------------------------------------ p. 12

2)      Questions at stake----------------------------------------------------------------- p. 12

3)      Compatibility with international treaties-------------------------------------- p. 12

4)      Specific legislation---------------------------------------------------------------- p. 14

5)      Sub-conclusion-------------------------------------------------------------------- p. 14

F.      Drug testing in discotheques------------------------------------------------------- p. 15

1)      Short description------------------------------------------------------------------ p. 15

2)      Questions at stake----------------------------------------------------------------- p. 15

3)      Compatibility with international treaties-------------------------------------- p. 15

4)      Specific legislation---------------------------------------------------------------- p. 15

5)      Sub-conclusion-------------------------------------------------------------------- p. 16

G.    Issues relating to drug use in prison---------------------------------------------- p. 16

1)      Short description------------------------------------------------------------------ p. 16

2)      Questions at stake----------------------------------------------------------------- p. 16

3)      Compatibility with international treaties-------------------------------------- p. 16

4)      Specific legislation---------------------------------------------------------------- p. 16

5)      Sub-conclusion-------------------------------------------------------------------- p. 17

             I.      Summary

This technical report investigates the legal (pre)conditions and control mechanisms with regard to several risk reduction strategies. In particular, exchange and distribution of needles and syringes, heroin prescription, methadone maintenance, drug testing in discotheques as well as issues relating to drug use in prison are the subject of this report. It is, however, neither the intention nor the assignment to give an exhaustive enumeration of the countries that have implemented such strategies or that intend to do so in the (near) future. In essence, the present report is a mere juridical study, exploring the limits of pursuing risk reduction policies within the framework of the United Nations Conventions. It is in no way the intention to formulate recommendations or give advice to national authorities.

After a thorough study of the three United Nations Conventions, it becomes clear that risk reduction strategies often clash with these conventions in both letter and spirit. These conventions are set up in order to protect public health and safety. In relation to risk reduction strategies, however, it is often the question to what extent these risk reduction strategies benefit health. The conclusions for the various strategies can be summarised as follows:

Although exchange and distribution of needles and syringes in theory violate international law, governments have the capability to implement exchange and distribution programmes in order to prevent the spread of blood-borne viruses, such as the human immunodeficiency virus (HIV), Hepatitis B and/or C. Such programmes are thus permitted from a public health point of view. Nevertheless, some preconditions are necessary. In most cases, these refer to safeguards in relation to public health.

Inasmuch as the use of narcotic drugs and psychotropic substances is only permitted for 'medical and scientific purposes' and this expression is not further specified, the three United Nations Conventions do leave scope for socio-medical supply of drugs, including heroin. And although the INCB is not a proponent of heroin prescription, it cannot prohibit it from a legal point of view. Nevertheless, heroin prescription as a risk reduction strategy must at the same time be subject to those safeguards that see to it that heroin prescription falls under the expression ‘medical and scientific purposes’. To that end, heroin-assisted treatment imposes several admission criteria, such as drug dependency, failure in other treatment programmes and administrative and control criteria, as well as other measures in order to avoid diversion to the black market.

Like heroin prescription, methadone maintenance therapy is allowed within the framework of 'medical and scientific purposes'. To that end, methadone requires special precautions concerning its prescription and dispensation, similar to those of heroin prescription. Unlike heroin prescription, the INCB encourages the medically supervised administration of methadone prescription, accompanied with a thorough monitoring of this kind of policy.

There is no clear guidance in relation to the compatibility of injecting rooms with international law. On the one hand, such facilities infringe upon certain provisions of the international conventions concerning the use and possession of drugs, but on the other hand, international law does not impose a criminal settlement for drug possession for personal use as such. It only requires a discouragement of this act. Moreover, countries using the expediency principle may choose to rely on it in order to allow the possession of drugs for personal use. Nevertheless, it must be stated that governments are not allowed to invoke this expediency principle whenever they would like to deviate from the international provisions. And inasmuch as injecting rooms are extreme forms of risk reduction, some doubts can appear about the fidelity to the convention obligations. On the other hand, the European Action plan to Combat Drugs refers to Article 152 of the Treaty of Amsterdam (1997) in order to stress a new objective of co-operation between Member States, namely the reduction of drug-related health damage, alongside the traditional co-operation in the prevention field[1]. As a result, risk reduction strategies, which include injection rooms, become more and more acceptable. But once again, special preconditions will determine whether these strategies resort under the qualification risk reduction.

On-the-spot drug testing can be considered to be in contravention with the international conventions, because it tolerates illicit drug use and can be considered as a public incitement or inducement to use drug illicitly. On the other hand, since well-defined definitions concerning the expression 'medical and scientific purposes' are lacking, testing drugs can be argued to resort under this term. That is to say, pill testing aims at determining the exact composition of the pills, which can be considered as a scientific purpose. In addition, pill testing tries to warn people in relation to the possible danger of the pills. To our knowledge, however, there is no legislation available concerning this controversial practice. It seems that it is merely tolerated.

According to international laws and organisations, the states’ duty towards health does not end at the prison gates. Methadone treatment, heroin maintenance and/or exchange and distribution of sterile injection equipment may be provided within the penal system. Nevertheless, such risk reduction options also require some preconditions, similar to those in relation to risk reduction options outside prisons.

          II.      Technical report on the legal (pre)conditions and control mechanisms with regard to risk reduction

A.     Introduction

This technical report investigates the legal (pre)conditions and control mechanisms with regard to several risk reduction strategies. More in particular, exchange and distribution of needles and syringes, heroin prescription, methadone maintenance, drug testing in discotheques as well as issues relating to drug use in prison are the subject of this report. It is, however, neither the intention nor the assignment to give an exhaustive enumeration of the countries that have implemented such strategies or that intend to do so in the (near) future. In essence, the present report is a mere juridical study, exploring the limits of pursuing risk reduction policies within the framework of the United Nations Conventions.

For each strategy the work is divided in five parts. It first gives a short description of the particular option. A second part sets out which questions and problems are at stake. Thirdly, the report pinpoints to what extent it is possible to implement these risk reduction options according to the three United Nations Conventions. That is to say, according to the Single Convention on Narcotic Drugs of 1961 as amended by the 1972 Protocol amending the Single Convention on Narcotic Drugs[2]; the Convention on Psychotropic Substances of 1971[3] and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic substances of 1988[4]. This part also processes the opinion of the International Narcotics Control Board (hereinafter ‘the INCB’) with regard to these kinds of implementations, because the INCB has the duty to control the Parties’ interpretations of the Conventions. This information has been obtained by means of the latest report of the INCB[5] and by an additional communication with the INCB Secretariat, on 14 July 2000 about the different risk reduction strategies discussed in this report. Subsequently, specific legislation concerning the ‘good medical practice’ of such programmes is provided. To that end, the report refers to some countries, which comprise (pseudo-) regulations for the implementation of such strategies at national level. It is of course obvious that only some countries are referred to, for this report does not have the intention – as mentioned above – to provide an exhaustive enumeration of prevailing national legislation or practices. Finally, the report gives for each strategy a short sub-conclusion. 

B.     Exchange and distribution of syringes

1)      Short description

Several methods to increase the availability of sterile needles and syringes are widespread throughout most developed and many developing countries. Next to pharmacy-based (distribution) strategies, needle exchange programmes (NEPs), which provide sterile injection equipment on an exchange basis, are most common[6]. The purpose of these (one-for-one) exchange programmes is the removal of used equipment from circulation, which is important from a public health point of view[7]. Nevertheless, the programmes may vary in the extent to which they insist upon participants returning syringes[8]. These distribution services and NEPs can occur as fixed agencies and/or as mobile units, such as, for instance, in Italy and the Netherlands[9]. Finally, some countries, such as Norway and the Netherlands, also give access to sterile needles and syringes by means of (exchange) vending machines[10].

2)      Questions at stake

Exchange and distribution of syringes raises the question of whether governments are allowed to exchange and distribute needles and syringes within the framework of the three United Nations Conventions, and whether addicts are allowed to possess such injection equipment. Another question is whether governments provide safeguards to avoid as much as possible the problem of discarded needles and syringes. Otherwise it is hard to state that exchange and distribution of injection equipment contributes to risk reduction requirements.

3)      Compatibility with international treaties

In theory, programmes that involve the exchange and distribution of needles and syringes violate international law, because such programmes provide an opportunity for, or even aid and abet in, the consumption of drugs. It is obvious that this clashes with the intention of the United Nations Conventions. Exchange and distribution of sterile injection equipment facilitates drug abuse, whilst the three international conventions are set up in order to prevent this. More in particular, such programmes are in contravention with Article 38 of the 1961 Convention, which states that ‘parties should give special attention to and take all practicable measures for the prevention of abuse of drugs’[11]. In addition, they can be considered as a criminal offence under Article 3, paragraph 1, sub c (iii), of the 1988 Convention for ’public inciting or inducing others […] to use narcotic drugs or psychotropic substances illicitly’[12].

On the other hand, next to the desire to prevent and combat drug abuse and addiction, the international drug control conventions also express the general concern with public health and welfare of mankind in their preambles. This means that governments can deviate from the above-mentioned articles on the basis of this expression in the preambles. Therefore, governments are allowed to implement exchange and distribution programmes in order to prevent the spread of blood-borne viruses, such as the human immunodeficiency virus (HIV), Hepatitis B and/or C. In this light, international organisations, including the World Health Organisation and the United Nations Programme on HIV/AIDS, have strongly supported the development of exchange and distribution of needles and syringes in developed and developing countries[13]. Also the INCB has never rejected this kind of risk reduction option. The INCB recognises that the spread of such blood-borne viruses among injecting drug users and from them into the wider community poses a great threat to public health. It is thus a serious concern, which can be avoided. Exchanging and distributing sterile needles and syringes can contribute to preventing the spread of blood-borne viruses.

With regard to the possession of injection equipment, Article 37 of the 1961 Convention is applicable. This article states that ‘any drugs, substances and equipment used in or intended for the commission of the offences referred to in Article 36 shall be liable to seizure and confiscation’[14]. Article 36, however, only enumerates the 'cultivation, production, manufacture, extraction, preparation, possession, offering for sale, distribution, purchase, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation and exportation of drugs'[15]. This means that parties to the 1961 Convention are not obliged to seize and confiscate equipment to use drugs, because drug use must not be penalised according to Article 36. The convention prohibits the possession of drugs, but not the possession of equipment to use drugs. In other words, international law does not prohibit addicts to obtain sterile injection equipment as such.

4)      Specific legislation

In practice, national legislation often impedes access to sterile needles and syringes. Belgian legislation, for example, used to impede accessibility to sterile injection equipment because syringes were considered as medicines (sterile products) and were subject to quality controls. Therefore only pharmacists or – under specific circumstances – general practitioners were allowed to dispense this equipment[16].

This impediment has been removed in 1998, when a bill has been approved to give needle exchange programmes a legal framework[17]. In particular this bill determines the conditions and modalities for the sale, retail trade and delivery, even free of charge, of sterile injection equipment, disinfectants and sterile bandage by authorised persons[18]. Above all, according to Article 2 the delivery of needles and syringes free of charge is only permitted on an exchange basis. This exchange principle aims to collect as many dirty syringes as possible in order to avoid discarded needles and to prevent NEPs from being responsible when an accident occurs[19]. On the other hand, drug addicts may decide to buy their needles and syringes, in which case it concerns only the distribution of injection equipment. As a result of this distribution practice, there are no safeguards with regard to the disposal of dirty needles and syringes.

Another measure aimed at avoiding health risks, is the obligation in Article 3 that the sale, retail trade and delivery (even free of charge) must be attended with the supply of written information concerning good practices of injection equipment or additional social, psychological, medical and judicial help[20]. In other words, Belgian exchange and distribution programmes not only provide sterile injection equipment, they also provide other information to reduce the risks related to injecting drug use. Article 4 further enumerates the persons who are allowed to dispense needles and syringes[21]. It concerns pharmacists and general practitioners, as well as nurses, psychologists, social workers and others. Apart from the two first categories, however, these persons must be connected with a specialised centre by virtue of their profession. Dispensation of injection equipment is thus strictly regulated, which means that not any person is allowed to dispense needles and syringes. In addition, the bill contains provisions with regard to the quality of the injection equipment and with regard to the safety of the deposition of used needles and syringes[22]. These measures aim to protect personnel working in such programmes. The fast destruction of returned (possibly contaminated) injection equipment exemplifies this. Finally, Article 6 obliges persons authorised to dispense needles and syringes to keep a register in relation to the injection equipment[23]. A register in relation to the drug addicts is not obliged in order to guarantee their anonymity.

Nevertheless, this new bill was not able to eliminate all dispersal barriers in Belgium, due to a lack of financial support[24]. In the Netherlands, by contrast, there are no legal and dispersal barriers in relation to the sale, distribution and possession of injection equipment. Needles and syringes can be obtained at pharmacies and certain shops[25]. The possession of needles and syringes has never been prohibited for drug users.

5)    Sub-conclusion

Although exchange and distribution of needles and syringes in theory violate international law, governments have the capability to implement exchange and distribution programmes in order to prevent the spread of blood-borne viruses, such as the human immunodeficiency virus (HIV), Hepatitis B and/or C. Such programmes are thus permitted from a public health point of view. Nevertheless, some preconditions are necessary. In most cases, these refer to safeguards in relation to public health.

C.     Heroin prescription

1)      Short description

Heroin prescription is the controlled distribution of heroin (for intravenous injection and/or inhalation)[26] to problematic heroin addicts or poly drug addicts with heroin as the main drug of abuse who failed to continue other available treatment programmes, such as methadone maintenance. This prescription of heroin is part of a comprehensive programme including health care, therapy and social assistance for patients[27]. In this manner, heroin-assisted treatment is a more appropriate description of this kind of risk reduction strategy, which is used in a small number of countries within the framework of a scientific experiment[28]. The most prominent examples are Switzerland and the Netherlands.

2)      Questions at stake

Heroin-assisted treatment raises a number of questions that include whether, according to the international law, governments are allowed to prescribe heroin to drug addicts and whether this is also possible outside the framework of a medical-scientific experiment. It moreover poses the question of whether addicts are allowed to possess heroin in cases of so-called ‘take-home doses’ and which preconditions should be taken into account when prescribing heroin to problematic heroin addicts or poly drug addicts with heroin as the main drug of abuse.

3)      Compatibility with international treaties

Several articles of the 1961 and 1971 Conventions oblige governments to limit the use and possession of drugs (as well as other dealings with drugs) exclusively for medical and scientific purposes[29]. According to Article 4, subparagraph 1 (c) of the 1961 Convention in relation to subparagraph 1 (a) of that same article, free and unrestricted availability of narcotic drugs to people for non-medical purposes is prohibited[30]. In other words, only the use of narcotic drugs and psychotropic substances for 'medical and scientific purposes' (within the framework of a medical-scientific experiment) is exempted from the scope of the conventions.

But inasmuch as none of the international drug control conventions contain definitions of the expression 'medical and scientific purposes' as a whole or of the terms 'medical' and 'scientific' as individual concepts[31], it is necessary to have recourse to the Vienna Convention on the Law of Treaties[32]. That convention codifies customary international law on many issues, including that of interpretation. Particularly, it states in Article 31 that 'a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose'[33]. However, neither the ordinary contextual meaning of the expression 'medical and scientific purposes', nor the meaning of the term in the light of the three Conventions' object and purpose, provides any guidance on the correct use of the expression[34]. The conventions do not mark out the boundaries of its use and thus do not substantially restrict the individual parties in their regulation of activities in these fields.

Notwithstanding the fact that, according to Article 31 of the Vienna Convention, related agreements and instruments as well as subsequent agreements and practice must be taken into account when considering the interpretation of the drug control conventions[35], guidance on the correct use of the expression 'medical and scientific purposes' is still lacking[36]. That is to say, not one agreement or instrument relating to these conventions makes reference to medical and scientific use of narcotic drugs or psychotropic substances. Moreover, since the subsequent practice of states in the application of the provisions concerning medical and scientific use has not been uniform and has been inconsistent, the interpretation remains at the discretion of individual states.

In conclusion, the United Nations Conventions are not very clear concerning what kind of circumstances resort under medical and scientific purposes or concerning what kind of substances might be used for such needs. In any case, they do leave scope for socio-medical supply of drugs, including heroin. As a consequence, it is possible that different governments reach different conclusions as to what ‘legitimate medical and scientific purposes’ are[37]. The term can therefore have different meanings, including the supply of (any kind of) drugs to addicts or the prescription of drugs to addicts in order to prevent painful withdrawal symptoms and/or in order to enable severe addicts to live a normal life[38]. Heroin prescription exemplifies this, since it is only permitted in a limited number of countries.

Notwithstanding this legal possibility to prescribe heroin to opiate addicts, the INCB[39] does not encourage governments to allow heroin prescription because the Swiss studies were not able to answer all the relevant questions and because of the 'very limited medical value' of heroin[40]. After all, heroin is listed in Schedule IV, which enumerates the most dangerous drugs, which are particularly harmful and have extremely limited medical and therapeutic value[41]. Nonetheless, the INCB cannot prohibit such medical heroin experiments, as it has the duty ‘to ensure their availability [of drugs] for such purposes’ according to Article 9, paragraph 4 of the 1961 Convention. The INCB must drive back and prevent illegal trade and use, but not the legitimate medical use of narcotic drugs. Hindrance of the supply of drugs for legitimate medical purposes would be a clear infringement of the intention of the 1961 Convention[42].

4)      Specific legislation

In 1992 the Swiss Federal Council authorised a research programme for three years with regard to the medical prescription of narcotics, called PROjekt zur VErschreibung von Betäubungsmitteln (PROVE)[43]. The legal basis for this programme is the Decree of the Federal Council concerning the evaluation of projects with a view to prevent drug addiction and to improve the living conditions of drug addicts[44]. It concerned a scientific research in line with the provisions of the Federal Law on Narcotics[45]. After several adaptations to this decree and many years of experiments, the Swiss Federal Council inserted this new type of treatment for the severely dependent drug addicts in its so-called ‘four pillar policy’, by means of the urgent federal regulation of 9 October 1998[46] and the Decree on the medical prescription of heroin of 8 March 1999[47].

This 1999 Decree pinpoints that heroin prescription is carried out under several preconditions. To begin with Article 4, in relation to Article 6, stipulates several admission criteria for addicts wishing to enter a treatment with heroin prescription to fulfil. People admitted to heroin-assisted therapy must have a relatively long history of dependency, legally defined as two years of dependency[48]. They are only admitted when they have failed in other treatment options. That is to say, at least two proven unsuccessful efforts to follow treatment or another substitution programme are necessary[49]. Furthermore, heroin is only prescribed when addicts have somatic, psychic or social malfunctions. This means that heroin is not prescribed to each addict, but only to those who have serious health problems. Finally, the 1999 Decree also stipulates administrative and control criteria. For example, the Swiss heroin treatment requires a minimum age of 18 years[50], the addicts’ informed consent about the conduct of the treatment, their rights and obligations and the consequences when these latter are violated[51], as well as the deposition of their driving licence[52].

In addition, the 1999 Decree imposes measures in order to avoid diversion of heroin to the black market. For example, heroin is in general administered in institutions under visual control of medical personnel[53]. So-called ‘take-home doses’ are restricted and must be authorised by the Federal Office of Public Health[54]. The 1999 Decree moreover makes high demands upon medical personnel[55] and the preservation of the drugs[56].

These criteria are not characteristic of the Swiss heroin experiments as the Dutch experiment stipulates comparable conditions.

5)      Sub-conclusion

Inasmuch as the use of narcotic drugs and psychotropic substances is only permitted for 'medical and scientific purposes' and this expression is not further specified, the three United Nations Conventions do leave scope for socio-medical supply of drugs, including heroin. And although the INCB is not a proponent of heroin prescription, it cannot prohibit it from a legal point of view. Nevertheless, heroin prescription as a risk reduction strategy must at the same time be subject to those safeguards that see to it that heroin prescription falls under the expression ‘medical and scientific purposes’. To that end, heroin-assisted treatment imposes several admission criteria, such as drug dependency, failure in other treatment programmes and administrative and control criteria, as well as other measures in order to avoid diversion to the black market.

D.     Methadone maintenance therapy

1)      Short description

Methadone maintenance therapy is the ’ongoing prescribing of methadone over any reasonably lengthy time period'[57]. It attempts to replace more dangerous illegal drugs with a long acting legal one that is medically prescribed. However, there are major differences internationally in this kind of treatment[58], especially with regard to the length of the treatment, the admission criteria as well as the procedures for administration[59]. A case in point pertains to the low-threshold versus high-threshold methadone programmes. The first programmes have very few absolute requirements. Detoxification is not necessarily mandatory, continuation of drug use is often tolerated and urine testing is not always performed. The high-threshold programmes are change oriented, involving counselling and urine testing in order to change the addictive behaviour.

2)      Questions at stake

In relation to methadone maintenance treatment the same problems rise as is the case with heroin prescription. The question is whether the international conventions permit governments to prescribe methadone and which persons are allowed to do so. It is moreover the question whether governments maintain addiction by means of methadone maintenance therapy, as this kind of treatment replaces one drug by another, and thus one addiction by another. Finally, the question rises whether drug addicts are allowed to possess methadone in cases of the so-called ‘take-home doses’.

3)      Compatibility with international treaties

The same explanation as for heroin prescription goes for methadone maintenance therapy. It is allowed within the framework of 'medical and scientific purposes'. The INCB encourages ‘the medically supervised administration of prescription drugs in line with sound medical practice and the international drug control treaties’[60], but on the other hand also touches on the necessity of a thorough monitoring of this prescription policy[61].

This latter stems from provisions of the United Nations Conventions, which establish 'a dual drug control obligation for governments: to ensure adequate availability of narcotic drugs, including opiates, for medical and scientific purposes, while at the same time preventing the illicit production of, trafficking in and use of such drugs'[62]. Therefore, governments must fulfil two preconditions in relation to medical prescription. First, the prescription is only allowed by authorised persons, i.e. ‘persons who have a licence or other similar control measure’[63] and thus are competent to make the right decision concerning the prescription. As a result, the supply (sale or distribution) but also the possession of the medication must be restricted to a certain categories of persons. Secondly, when prescribing drugs to opiate addicts, governments must at the same time prevent diversion of the drugs to the black market. This means that they are obliged to provide the necessary safeguards in their legislation.

According to the literature, there are several kinds of maintenance therapies: on the one hand, those aimed at abstinence, and on the other hand, those where abstinence is not necessarily a goal. Inasmuch as the international conventions do not give any guidance concerning the permitted or preferred length of a medical treatment, one could assume that there is no restriction on this length. However, the INCB argues that substitution treatment without the ultimate goal of abstinence is not ambitious enough. The addict remains drug dependent; it only replaces the drug by another drug. In addition, the INCB is of the opinion that ’pharmacotherapy is not a panacea’[64]. Complementary and/or alternative treatment modalities, such as counselling and psychotherapy, must help the drug addict.

4)      Specific legislation

Methadone has been used in Belgium for several years now. In 1994, a so-called ‘consensus conference’ took place in relation to methadone maintenance treatment for heroin addicts. The result of this meeting has been embodied in a ‘consensus note’ between the medical sector and the Ministry of Social Integration, Public Health and Environment. On the basis of this consensus note’s preconditions, which are set in order to avoid misuse and diversion of methadone to the black market, and on the basis of the good medical practice, which resulted from these criteria, legislation will be developed in the (near) future. The criteria are set out in what follows[65]. To begin with, entrance in methadone maintenance treatment is subject to a minimum age of 18 years and a proven history of heroin dependence of one year. Secondly, methadone is dispensed in the oral form, usually in the liquid vehicle. Exceptions exist, however, for take-home doses, which are dispensed in tablets (or in ampoules, such as in the United Kingdom, to inject the methadone dose[66]). Furthermore, psycho-social approximation and support are essential factors for the result of a methadone maintenance programme. And finally, drug addicts may be treated in a multi-disciplinary centre, by a general practitioner or a specialist. These doctors must have acquired the necessary education and must moreover maintain this education.

The consensus note further stipulates that there is no scientific reason to restrict the global amount of eligible patients, on the condition that they meet the above-mentioned criteria. In addition, occasional additional use is not considered as a reason to terminate the treatment or to reduce the dose. Nevertheless, as already mentioned above, these stipulations are not universal. In Swedish high-threshold programmes, for example, additional use is not allowed[67].

In any case, methadone requires special precautions concerning its prescription and dispensation, similar to those of heroin prescription. A case in point pertains to the categories of persons who are allowed to supply (sell and distribute) methadone, as well as those who are allowed to possess the medication. In the United Kingdom, these categories are enumerated in the law, which strictly regulates methadone treatment[68].

Also the new German law concerning substitution treatment exemplifies provisions in relation to the necessary safeguards in order to minimise misuse[69]. For example, an anonymous substitution register is designed to prevent the prescription by several practitioners simultaneously. There are additional provisions with regard to the so-called ‘take-home doses’, which stipulate some kind of ‘holiday arrangement’ for once-only cases in order to prevent diversion to the black market.

5)      Sub-conclusion

Like heroin prescription, methadone maintenance therapy is allowed within the framework of 'medical and scientific purposes'. To that end, methadone requires special precautions concerning its prescription and dispensation, similar to those of heroin prescription. Unlike heroin prescription, the INCB encourages the medically supervised administration of methadone prescription, accompanied with a thorough monitoring of this kind of policy.

E.     Shooting/injecting rooms

1)      Short description

Injecting rooms are supervised facilities designed to reduce the health and public order problems associated with illegal (injection) drug use[70]. It concerns places where drug users can get together and are permitted to consume heroin and/or cocaine. They obtain clean injection equipment, condoms, advice, medical attention and/or social services[71]. Injection rooms exist in several European cities, inter alia situated in Germany, Switzerland, the Netherlands and Spain[72]. They are expected to open elsewhere in coming years, such as in Luxembourg and Denmark[73].

2)      Questions at stake

The problem with injection rooms is that they tolerate drug use and thus can infringe upon the provisions of the international treaties concerning the use and possession of drugs. In addition, the question can be raised whether such facilities can be considered as an inducement to use drugs. Once again, it is the question whether this form of risk reduction can be reconciled with the basic principle of medical purposes on the basis of the psycho-social preconditions and the medical support.

3)      Compatibility with international treaties

According to Article 4, subparagraph c, of the 1961 Convention, governments are obliged to counter the trade in, use and possession of drugs with legislative and administrative measures as may be necessary[74]. This does not mean, however, that parties are obliged to penalise these actions. This obligation only arises from Article 36, which enumerates the activities that require a punishment[75]. Nevertheless, this latter article does not contain an obligation to penalise the use of drugs. In addition, the required penalisation of drug possession does not necessarily refer to ‘possession for personal use’. Article 36 was actually set up in order to penalise acts in relation to drug trafficking[76]. This idea also applies to the range of Article 37, which consequently does not require the seizure and confiscation of small amounts of drugs for personal use[77].

Article 4, subparagraph c, in relation to Article 33 of the 1961 Convention, however, does require a penalisation and an arrangement for seizure and confiscation of ‘possession for personal use’[78]. Yet, the nature of that penalisation can be minimal. It does not require a criminal punishment. Even a rebuke can be sufficient[79]. In other words, international law requires a discouragement of drug possession for personal use, but does not impose a criminal sanction for this act as such.

According to the INCB the policy behind drug injection rooms clashes with international conventions on combating the drug trade. It argues that as such facilities tolerate illegal drug use, they also allow the possession of drugs for personal use[80]. This is, however, not in line with Article 3, paragraph 2 of the 1988 Convention, which clearly states that ‘each Party shall […] establish as a criminal offence under its domestic law […] the possession and purchase […] of narcotic drugs or psychotropic substances for personal consumption’[81]. In other words, by permitting drug injection rooms and thus showing tolerance towards illegal drug use, governments might violate the international drug control conventions, as they allow or even aid and/or abet the possession of illegal drugs for personal use. In addition, the INCB argues that such ‘shooting galleries’ also facilitates illicit drug trafficking, while governments ‘have an obligation to combat illicit drug trafficking in all its forms’[82].

Nevertheless, that same Article 3, paragraph 2 states that parties to the 1988 Convention are obliged to establish drug possession for personal consumption as a criminal offence, ‘subject to its constitutional principles and the basic concepts of its legal system’. This means that the international treaties do not infringe upon the principle of expediency[83], which is in some countries (Belgium, the Netherlands and France, for instance) used to renounce the prosecution of crimes, such as possession of drugs for personal use[84]. Therefore, when this principle exists in a country’s criminal justice system, that country may apply it when establishing drug injection rooms in order to avoid violating international law. In other words, this principle gives such a country the opportunity to create and pursue its own (drug) policy. Possession of drugs for personal use is still a criminal offence, but the country tolerates it. A case in point pertains to the Dutch ‘soft drugs’ policy, which tolerates the limited possession and purchase and small-scaled cultivation of cannabis for personal use[85].

However, the three UN Conventions require a loyal enforcement[86]. And according to the INCB, the implementation of drug consumption rooms can certainly not be considered as a loyal enforcement, as ’the international drug control treaties were established many decades ago precisely to eliminate places, such as opium dens, where drugs could be abused with impunity’[87]. Nevertheless, it must be stated that governments are not allowed to invoke the expediency principle whenever they would like to deviate from the international provisions. And inasmuch as injecting rooms are extreme forms of risk reduction, some doubts can appear about the fidelity to the convention obligations.

On the other hand, the European Action plan to Combat Drugs refers to Article 152 of the Treaty of Amsterdam (1997) in order to stress a new objective of co-operation between Member States, namely the reduction of drug-related health damage, alongside the traditional co-operation in the prevention field[88]. As a result, risk reduction strategies, which include injection rooms, become more and more acceptable. But once again, special preconditions will determine whether these strategies resort under the qualification harm reduction.

4)      Specific legislation

At the end of February 2000, the German Government adopted a new law amending the Narcotics Act[89]. This law established a solid legal framework that uniformly applies throughout Germany and provides a clear-cut basis for the lawful operation of drug consumption rooms. In a list, the law enumerates ten minimum requirements, which relate above all to health issues and the safety, security and supervision of the use of narcotic drugs brought into these establishments where it is condoned. The setting up and running of injection rooms is a matter for the Länder to decide. They provide the greatest safety and supervision possible when it comes to using narcotic drugs in such facilities by seeing to it that qualified counselling and assistance is provided.

In answer to the objections of the INCB with regard to shooting rooms, the Federal Government requires that criminal offences, particularly drug trafficking and any kind of aiding and abetting drug use, also and precisely in drug consumption rooms, will be prosecuted pursuant to the general penal provisions. Moreover, the entities running these establishments must, in co-ordination with the authorities, guarantee additional measures to prevent criminal offences from being committed in drug consumption rooms and in the surroundings of these facilities.

5)      Sub-conclusion

There is no clear guidance in relation to the compatibility of injecting rooms with international law. On the one hand, such facilities infringe upon certain provisions of the international conventions concerning the use and possession of drugs, but on the other hand, international law does not impose a criminal settlement for drug possession for personal use as such. It only requires a discouragement of this act. Moreover, countries using the expediency principle may choose to rely on it in order to allow the possession of drugs for personal use. Nevertheless, it must be stated that governments are not allowed to invoke this expediency principle whenever they would like to deviate from the international provisions. And inasmuch as injecting rooms are extreme forms of risk reduction, some doubts can appear about the fidelity to the convention obligations. On the other hand, the European Action plan to Combat Drugs refers to Article 152 of the Treaty of Amsterdam (1997) in order to stress a new objective of co-operation between Member States, namely the reduction of drug-related health damage, alongside the traditional co-operation in the prevention field[90]. As a result, risk reduction strategies, which include injection rooms, become more and more acceptable. But once again, special preconditions will determine whether these strategies resort under the qualification risk reduction.

F.      Drug testing in discotheques

1)      Short description

On-the-spot toxicological pill tests offer buyers personalised, tailor-made advice in relation to the safety of the investigated tablets by means of testing the purity and contents of these tablets before use. This controversial practice is carried out in only a few countries, such as Austria, Germany, Portugal, France and the Netherlands, and mainly targets teenagers at 'raves'[91].

2)      Questions at stake

The question is whether pill testing can be considered as a public incitement or inducement to use drugs illicitly and thus can be considered to be in contravention with the international treaties.

3)      Compatibility with international treaties

On-the-spot drug testing tolerates illicit drug use, which is in contravention with the international conventions, as Article 38 of the 1961 Convention clearly states that 'parties should give special attention to and take all practicable measures for the prevention of abuse of drugs'[92]. Article 20 of the 1971 Convention and Article 14 of the 1988 Convention have similar provisions[93]. Besides, providing information and advice concerning particular drugs can be considered as public incitement or inducement to use drugs illicitly. And that is prohibited according to Article 3, paragraph 2, of the 1988 Convention, which requires governments to establish this act as a criminal offence.

But again, countries using the expediency principle may choose to rely on it within the framework of the public prosecutor’s discretionary power to decide not to prosecute this behaviour. However, considering that the conventions are set up in order to prevent drug abuse, it is hard to imagine that this can be seen as ‘a loyal enforcement’ of its provisions.

On the other hand, since well-defined definitions concerning the expression 'medical and scientific purposes' are lacking, testing drugs can be argued tofall under this term. That is to say, pill testing aims at determining the exact composition of the pills, which can be considered as a scientific purpose. In addition, pill testing tries to warn people in relation to the possible danger of the pills in order to protect public safety. Therefore, insofar as the term 'medical and scientific purposes' is not specified, governments can argue that pill testing resorts under the term 'medical and scientific purposes'.

In addition, the drug laboratories can be considered as 'regional centres for scientific research and education to combat the problems resulting from the illicit use', as provided in Article 38 bis of the 1961 Convention[94]. They are able to monitor the XTC-market, which changes incredibly fast, and to inform the drug taking 'clubbers'.

4)      Specific legislation

To our knowledge there is no legislation available concerning on-the-spot toxicological pill testing. It seems that this controversial practice is merely tolerated in the countries mentioned above.

5)      Sub-conclusion

On-the-spot drug testing can be considered to be in contravention with the international conventions, because it tolerates illicit drug use and can be considered as a public incitement or inducement to use drug illicitly. On the other hand, since well-defined definitions concerning the expression 'medical and scientific purposes' are lacking, testing drugs can be argued to resort under this term. That is to say, pill testing aims at determining the exact composition of the pills, which can be considered as a scientific purpose. In addition, pill testing tries to warn people in relation to the possible danger of the pills. To our knowledge, however, there is no legislation available concerning this controversial practice. It seems that it is merely tolerated.

G.    Issues relating to drug use in prison

1)      Short description

The considerable growth of addicted inmates has resulted in a range of drug-related problems, such as smuggling, dealing and drug use, within the prison system. This situation also created many new problems of a medical and psycho-social nature for which prison personnel felt totally unprepared[95]. These problems have been dealt with by – among other things – various risk reduction strategies. For example, addicted prisoners may receive methadone treatment[96], heroin maintenance[97] and/or sterile needles and syringes[98].

2)      Questions at stake

In relation to risk reduction strategies within prisons, such as exchange and distribution of needles and syringes, methadone maintenance therapy, as well as heroin-assisted treatment, the same questions and problems appear as is the case with risk reduction strategies outside prison walls.

3)      Compatibility with international treaties

The three United Nations Conventions contain several provisions, which allow governments to give drug abusers measures of treatment, education, after-care, rehabilitation and social reintegration as an alternative to (or in addition to) conviction or punishment[99]. Therefore, methadone treatment, heroin maintenance as well as the exchange and distribution of needles and syringes may be provided within prison systems. Besides, international recommendations on HIV/AIDS and drug use in prisons, mostnotably made by the World Health Organisation[100], all stress the importance of prevention of transmission of HIV in prisons, and urge to make condoms and sterile needles or bleach available to prisoners[101]. In other words, according to international law and organisations the states’ duty towards health does not end at the gates of prisons.

The INCB is of the opinion that drugs in prison must be avoided in the first place, but they admit that this is not possible in practice. It however considers that agrees that treatment, including substitution treatment and needle/syringe distribution, should be provided within prisons. On the other hand it also stresses that it should not end there. Once again, concomitant counselling and psychotherapy must also be provided.

4)      Specific legislation

With regard to the exchange and distribution of needles and syringes, Switzerland initiated such a programme some years ago. Particularly, in 1994, a pilot-project of HIV-prevention was installed in the Swiss prison of Hindelbank, including the exchange of sterile injection material by means of one-to-one automatic dispensers[102]. Within the framework of HIV-prevention, additional information and counselling was provided, but there were no further preconditions in relation to the dispensation of needles and syringes.

To exemplify methadone treatment, a number of general practitioners in several countries, such as the Netherlands, United Kingdom and Belgium, prescribe methadone to addicted inmates. In the two Dutch speaking countries, however, it generally concerns only reduction programmes (detoxification), in which prescription of methadone is reduced. There is virtually no substitution treatment on a maintenance basis, except for pregnant women and AIDS-patients in the Belgian prison systems[103]. Moreover, prison physicians have the authority to decide whether or not to supply methadone. In the Netherlands, prison doctors are – according to medical jurisprudence – obliged to verify a prisoner’s claim that he or she has been a client of an outside methadone programme. But after confirmation, they are still allowed to decide whether or not to prescribe methadone. As a result, there is no consensus about methadone practice among prison doctors[104].

On the other hand, there is a consensus on several points among prison physicians in the Netherlands[105]. First, in order to prevent dealing of methadone in prisons, it is agreed that a system of effective supervision and management is a necessity. Secondly, urine testing is seen as an indispensable tool for monitoring illegal drug abuse. Finally, continuing illegal drug use is a sufficient reason to stop the prescription of methadone.

Concerning heroin prescription behind prison walls, again the Swiss situation provides a good medical practice. Within the Swiss national project on medical prescription of narcotics there was also a heroin maintenance trial in the penal institution of Oberschöngrün[106]. In general, this special project required the same entry criteria as in the trials outside the prison walls. Participants have to prove that they have been heroin dependent for at least two years and that they have failed in earlier therapeutic efforts. Heroin is only prescribed when the addicted prisoners exhibit deficiencies concerning their social integration and/or psychological well-being and/or health. In addition, and by contrast of the trials outside prison walls, the minimum age is now 20 years and the target population only comprises heroin-addicted inmates with at least 9 months of sentence remaining. The reason for this is to make sure that a heroin programme continues for a considerable time. Heroin prescription for a shorter period would not reach the intentioned results, as there is no security of continuity of the programme after discharge. The participants live and work in a small group setting, separated from the main part of the prison. The heroin is provided three times daily by trained female staff (nurses) and the provision is supervised by a prison warder. Another condition is that the participants receive psycho-social counselling and care.

5)      Sub-conclusion

According to international law and organisations, the states’ duty towards health does not end at the prison gates. Methadone treatment, heroin maintenance and/or exchange and distribution of sterile injection equipment may be provided within the penal system. Nevertheless, such risk reduction options also require some preconditions, similar to those in relation to risk reduction options outside prisons.