COMMISSION ON NARCOTIC DRUGS ACTING AS PREPARATORY BODY FOR THE SPECIAL SESSION OF THE GENERAL ASSEMBLY OF THE UNITED NATIONS

ITEM No.1: PROMOTION OF JUDICIAL COOPERATION

Vienna, 7-9 October

Statement by the Transnational Radical Party

Mr. Chairman,

The Transnational Radical Party is fully engaged in the establishment of law and justice through which we can fight against the most serious international crimes. It is for this reason that we are working towards the establishment of an International Criminal Court against the most serious attacks to human rights.

We are, however, more careful within the domain of international legal cooperation when such cooperation is not accompanied by clear and democratically defined rules. Our prudence changes to mistrust when we are faced with judicial cooperation which calls on exceptional measures in specific areas. We are strongly against these exceptional procedures when they are applied to the sustaining of a fight - the fight against drugs - which must be fought with the instruments of reason and respect of fundamental freedoms, with no exceptions.

Having said that, Mr. Chairman, we will move on to outline the reasons why we consider the repressive police practices dangerous, for the issue of drugs.

Firstly it is important to be aware of the risks that overzealous cases bring, in the fight against new and worrying forms of criminality, in terms of the respect of traditional rules of protection under penal law. The starting point of all constructions of penal law is the recognition of fundamental principles which are the basis of the State of Law and which are, for this very reason, often written in the fundamental texts as Constitution or as international texts (European Convention on the Safeguard of Human Rights, the International Pact of Civil Rights). However, with the rising of organised crime - such as drug trafficking- we can ask ourselves what will become of these fundamental principles.

As a result of the crackdown on mafia and the seizures of their criminal earnings, what we are equally doing is in fact dealing mortal blows to the rights of defense, notably via, the reversal of the burden of proof. In several countries a new offence already exists: that of not being able to prove adequate legal income which matches the standard of living when there is seen to be a habitual relationship with a drug trafficker or consumer. The member countries of the GA-FI consider that difficulty of finding proof of guilt is one of the most serious obstacles to their fight, and so prefer to reverse this charge on the accused.

The principle non bis in idem, according to which a person cannot be convicted by the same facts twice, has been also weakened. The threat to fundamental freedoms is brought by the establishment of pro-active investigations such as tapping of telephones, break-ins, unannounced police searches, interception of mail. These are the most visible sign of insecurity felt by a society which is preoccupied with the eradication of minimal risks. The pro-activity, rather than putting an end to mafia activity, acts to establish an institutional insecurity.

The fight against drugs risks becoming a pretext for reinforcing the possibility of surveillance on everyaspect of the daily lives of citizens, thus infringing on the amount of freedom they usually enjoy when not being surveyed. Finally, if the prevention of crime could justify its repression, there would be very few areas where the State would not have any legitimate interest to intervene, as most aspects of social organisation have an impact on criminality.

Furthermore, theright of property is undermined by the act of confiscation and especially provisional seizures where by goods are held and their values frozen until the verdict is delivered. This brings us to a situation where all the personal belongings of a crime suspect are being held, prior to sentencing, according to the discretionary power of a tribunal, rather than the fundamental rule that belongings are confiscated as a result of a guilty verdict.

To what limit can this go? Seized goods and frozen capital are often kept unproductive for a long time. The whole economic system and in particular the financial sector can suffer as a result of such general uncertainty. It is probable that the application of legislation to deal with such a vast area as freezings, holdings and confiscations costs more than they would bring to the authorities and to the citizens.

Thus, multiple movements operate in the heart of the penal system where the means continually override their objectives. If we continue down this path, there will be such huge incentives to confiscate, that the authorities will become more interested in seizing the products of criminality, rather than in bringing the criminals to justice. If classical judicial cooperation has as its main objective, the gathering of proof relative to a given crime, in order to allow the State to call for an investigation of a particular suspect, the new aim of the judicial cooperation will become the freezing of products of the crime to allow the confiscation in cases where the perpetrator will possibly be convicted. In the same way, the inquiries will focus on the information itself, rather than on the use of the information as proof in a criminal trial.

Mr Chairman, this Commission has the mandate to propose to the General Assembly of June 1988 measures to promote international judicial cooperation. We hope that this mandate will be used to clearly reaffirm these fundamental principles, notably in the area of rights of the defense, without which no cooperation would be desirable.

We particularly ask the Commission on Narcotic Drugs to explicitly exclude, in the framework of judicial cooperation, any recourse to the following instruments, even in exceptional conditions:

- the reversal of the burden of proof

- double incrimination

- confiscation prior to final conviction

- the extradition to countries where the punishment would be inhumane or disproportionate

These limits would be more effective still if they caused Member States to take note of the failure of the repressive policies on drugs and avoid further proposal of their reinforcement.