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Drug Offenders- Submission by Freedoms Collective

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Drug Offenders- Submission by Freedoms Collective Submission to the Working Group on Arbitrary Detention: Study on arbitrary detention relating to drug policies 1. Please provide information concerning the number of people held in pre-trial detention as well as the number of those who are imprisoned pursuant to a conviction for drug-related offences. Please indicate what percentage of the total pre-trial detention population are being held for drug-related offences. Please identify the percentage of the total prison population who have been convicted and imprisoned for drug-related offences. For those convicted of drug-related offences, what percentage of this group have been imprisoned for acquisition, use or possession of drugs for personal use? How many people convicted of drug use belong to disadvantaged groups (e.g. women, pregnant women, children and youth, indigenous people, sex workers, lesbian, gay, bisexual, transgender (LGBT) persons, homeless people, people with HIV/AIDS, persons with disabilities, ethnic minorities, migrant communities? According to the 2020 prisons statistics of the Department of Prisons in Sri Lanka, of 29,164 of the total direct admissions of convicted prisoners, the number of direct admissions of convicted prisoners for drug offences is 15,123. The percentage of prisoners convicted for drug offences of the total number of convicted prisoners is therefore 51.9%. The statistics do not distinguish between persons who were convicted for the possession of drugs and those convicted for drug trafficking. However, according to the statistics, 10,799 prisoners (71.4%) of the 15,123 prisoners convicted for drug offences, were serving a sentence of one to six months in prison and another 2,627 (17.4%) prisoners were sentenced for six to twelve months in prison; therefore about 88.8% of the drug offenders received a sentence of up to one year. Fifteen prisoners were sentenced to death and thirty- eight prisoners were sentenced to life imprisonment for drug offences. As the penalty for the offence of drug trafficking is the death penalty or life imprisonment (discussed in detail below), and the offence of possession or consumption is a summary offence that carries a maximum penalty of five years imprisonment and/or a fine not exceeding LKR 10,000, it may be inferred that 88.8% of the prisoners convicted for drug offences were convicted for the offence of possession or consumption. 2. Does your State consider the acquisition, use or possession of drugs for personal use a minor offence within the meaning of this term as set out in the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 (article 3, para. 4 (c)? If so, what percentage of people arrested for the acquisition, use or possession for personal use of drugs are diverted out of the criminal justice system, and what alternative measures, if any, are such people subjected to? 1 Possession and consumption of drugs is an offence outlined in Section 52 of the Poisons, Opium, and Dangerous Drugs Ordinance, which states that (1) no person shall obtain or have in his possession any dangerous drug except as permitted by, or otherwise than in accordance with, the provisions of this Chapter or a licence of the Director, and (2) no person shall knowingly consume any dangerous drug, unless it is supplied to him for the purpose by a medical practitioner. The penalty for the offences outlined in Section 52(1) and (2) is stipulated in Section 78 of the same Ordinance: (a) On summary conviction by a Magistrate, to a fine not less than one thousand rupees and not exceeding ten thousand rupees or to imprisonment of either description for a period not exceeding five years or to both such fine and imprisonment; (b) On conviction before the High Court, to a fine not less than ten thousand rupees and not exceeding twenty-five thousand rupees or to imprisonment of either description for a period not less than six months and not exceeding seven years, or to both such fine and imprisonment. The offence of consumption and possession of drugs is thus not considered a minor offence as per the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 by default, due to the penalties it carries. However, according to law it is possible for alternatives to imprisonment, such as non-custodial drug rehabilitation treatment, to be used by judges to divert the offender to substance abuse treatment rather than imprison them. These options are outlined in the Community Based Corrections (CBC) Act, where an offender may be issued a CBC Order in lieu of imprisonment for an offence that does not require mandatory imprisonment for an offence which carries a sentence of less than two years imprisonment.1 As the offence of possession and consumption of drugs falls within this threshold, judges can opt for a non-custodial punishment and stipulate community service or mandatory rehabilitation to be a condition of the Order – particularly where persons are found to be drug dependent as proven by medical assessment. However, the provisions of the CBC remain vastly underutilised in the criminal justice process and therefore drug offenders convicted for consumption or possession of drugs are largely subjected to fines and/or imprisonment as a form of punishment. Of the total number of persons punished for drug offenders, there is no data on the number of persons diverted to non-custodial measures as punishment rather than imprisonment. 3. Has your State decriminalized the acquisition, use or possession of illegal drugs for personal use? If so, to what drugs does this apply and what are the amounts considered to be for personal use? What is the legislative or judicial basis for such decriminalization? If decriminalization has not taken place, what penalties apply to the acquisition, use or possession of illegal drugs for personal use? 1 Section 5 of the Community Based Corrections Act (No. 46 of 1999) 2 The acquisition, use and possession of all illegal drugs remains an offence in Sri Lanka. The penalties applicable include, as discussed above: (a) On summary conviction by a Magistrate, a fine not less than one thousand rupees and not exceeding ten thousand rupees or to imprisonment of either description for a period not exceeding five years or to both such fine and imprisonment; (b) On conviction before the High Court, a fine not less than ten thousand rupees and not exceeding twenty-five thousand rupees or to imprisonment of either description for a period not less than six months and not exceeding seven years, or to both such fine and imprisonment. 4. What types of circumstances have led to unlawful and arbitrary arrest of people in your State for drug-related offences? What structures/institutions are in place so that people who are arrested for a drug-related offence can make a complaint about unlawful and arbitrary arrest and detention, or the threat thereof? One observable pattern in the arrest of persons for drug related offences is that persons who are caught in the possession of a quantity of drugs are often charged by the police with the offence of drug trafficking under Section 54 of the Poisons, Opium, and Dangerous Drugs Ordinance. No assessment or evaluation is conducted of whether the drugs in question were in the suspect’s possession for their personal use or for sale prior to the charge. Although, according to the Bail Act, bail is the norm and refusal is supposed to be exceptional, as per Section 83 Poisons, Opium, and Dangerous Drugs Ordinance persons suspected of committing the offence of drug trafficking and sale cannot be released on bail (except by the High Court due to exceptional circumstances). Thus, persons charged with the offence of sale and trafficking drugs are required to remain in remand prison until the conclusion of their trial and cannot be released on bail. The trial process can take several months for cases concerning minor quantities of drugs, and several years for cases involving larger quantities of narcotic substances. For instance, a person arrested with 675mg of heroin had been in remand for about nine months awaiting indictment, whereas a person arrested in a case involving 500g of heroin was in remand for eleven years until he was sentenced to life imprisonment.2 The prolonged period of detention and undue delays in the case proceedings, due to lack of human resources and administrative delays at the Government Analyst Department and the Attorney General’s Department, could constitute arbitrary detention. The Government Analyst Department, which is overburdened and grappling with a backlog of thousands of cases, is required to assess the quantity/purity of the narcotic substances for which the suspect was arrested before the Attorney-General’s Department decides whether charges 2 Personal observations of former Human Rights Commissioner, Ambika Satkunanathan, who led the first ever national study of prisons conducted by the Commission from 2018 to 2019. She is currently a Senior Advisor to Freedoms Collective. 3 are to be filed. Until the report of the Government Analyst Department is issued the suspect is required to remain in remand prison. Drug offenders may lodge a fundamental rights petition at the Supreme Court, alleging that the prolonged pre-trial detention is a curb on their freedom from arbitrary arrest, detention and punishment guaranteed by Article 13 of the Constitution. However, a remand prisoner would have to hire legal representation, which will add to their cost of legal fees. Further, the petition
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