3. May 2022

The Responsibility of the Prosecuting Authority to End Arbitrary Persecution

The police have had a strong but not very insightful presence in the debate on drug reform. The response of the Norwegian Prosecuting Authority, therefore, comes as a surprise because while the Police Directorate, the Norwegian Police Confederation, and the Norwegian Narcotics Officers Association (NNPF) are more interested in continuing a regime of punishment, no matter how flawed, the response of the Prosecution Authority suggests a bigger perspective. It testifies to an office that has prepared for the forthcoming paradigm shift and which therefore stands with human rights and the rule of law.

As the Director of Public Prosecutions says, “Criminal law must be developed in the light of the development of society in general. The legal history provides several examples of the use of punishment which, judged based on current conditions and value assessments, is difficult to understand”. And even if the Director does not yet find “grounds for passing such a judgement on the current criminalisation of drug use and possession of drugs”, society needs to look at why we imprison people for up to 21 years for activities that are legally regulated elsewhere.

The Norwegian reform, for this reason, is a joke. It simply makes no sense to propose a policy where users will be able to buy cannabis from gangsters but not be able to buy quality-assured goods abroad or cultivate it themselves. It also makes no sense to continue persecution on rejected premises. Therefore, based on the same principled thinking that is illustrated by the Director of Public Prosecutions, NGOs have contacted the Director and asked to secure the rights of the persecuted.

Unresolved rights

The report of the Royal Commission is not only merciless in its criticism of drug prohibition. It demonstrates that the persecuted come under the protection of human rights, that the state is responsible for ensuring an effective remedy and that further analyses are necessary.

From the perspective of human rights, this is the status of the drug reform. Still, the politicians are not interested. Being dedicated to punishment, the supporters of prohibition ignore the responsibility for human rights, and based on this unfortunate state of affairs, the Director has been contacted by medical cannabis users. They feel overwhelmed by the political process. They have risked their lives and health to comply with Norwegian legislation and are now fed up. Therefore, several people use the emergency law principle and cultivate cannabis for their own use (as announced in the consultation round for the drug reform), and “Social Club” schemes have also been established.

Just as medical users have asked the higher prosecuting authority for national guidelines for those who wish to come forward, AROD wants the Director of Public Prosecutions to do the same in cases where recreational users, sellers and manufacturers contact the police. It is enormously important for the rule of law that a bigger picture of rights is clarified, and it is the hope of the persecuted groups that the Director has the integrity needed to deal with the sins of the past.

The Director himself calls for a more in-depth assessment, one that takes a closer look at challenges posed to the police, and the prosecuting authority can, with good reason, agree with the demands of the persecuted. Drug users and human rights defenders want the same as moral employees of the prosecution: They want to make sure that the country’s laws are within the framework defined by human rights and common sense so that law and order and right and wrong are the same. They want to reassure the people of the country that they have a judiciary that honours its obligations to the persecuted, and they want to build a bridge over the distance that exists between prohibitionists and the reform movement.

Those who look at this from a principled perspective believe that a human rights analysis, properly conducted and understood, will help us all see more clearly the problem with drug prohibition. No one is served by the ambiguity that prevails, and because the political process has overlooked human rights, more and more users, manufacturers and suppliers are considering contacting the police.

Guidelines for human rights activists

AROD has, therefore, asked the Director of Public Prosecutions for a circular that clarifies the prosecution’s responsibility in cases where drug offenders apply for the protection of human rights. We request that the Director, in this letter, reminds the employees of the higher prosecuting authority about their ethical responsibility so that the police and the prosecution support the demand for an effective remedy and facilitate the fulfilment of the rule of law guarantees.

This is not just to secure long-ignored individual rights. Another consequence of the status quo is the destructive effect that an overlooked catalogue of rights has on the authority of the state and the morale of civil servants. The police and the prosecution authorities are, more than any other agency, dependent on the adoption of healthy values; otherwise, the ripple effects are catastrophic, and the current regime acts contrary to the ethical guidelines and Circular no. 3/2018 (the quality circular).

In this letter, “it is emphasised that in the criminal proceedings of the police and the prosecuting authority, ethical reflections and professional objections shall be facilitated”. Furthermore, in the ethical guidelines, we find the most basic provision of the prosecution authority:

“Every employee in the prosecuting authority shall act in a manner that promotes a legally secure and trustworthy criminal justice system in accordance with the law and the rule of law. The reference to the rule of law is intended to cover all rules and guidelines given in or pursuant to the law and the Constitution. The rules of international law that the Norwegian authorities are obliged to follow are also covered. The legal order also includes fundamental values ​​and principles on which the administration of justice is based, including the rule of law, equality before the law, and the individual’s fundamental freedom and autonomy.”

It sounds good on paper, but this is not the current status. “The rule of law, equality before the law, and the individual’s fundamental freedom and autonomy” or the “ethical reflections” around this have been non-existent in the area of drug policy. Moreover, looking at the contact that civil society and NGOs have had with the employees in the police and the Prosecuting Authority, it is clear that the agents of the state do not want this. A culture has evolved where an oversized enemy image sets the agenda, and no one wants to look more closely at the preconditions. Despite this, the instructions are clear. The Director of Public Prosecutions is to abide by the following goals and values:

“The main goal of the Higher Prosecuting Authorities is to contribute to reduced crime through targeted and effective criminal proceedings while meeting the requirements for high quality and legal certainty. The criminal justice system, including our handling of cases and ethical issues, must, at all times, withstand a critical light. The humane character of criminal justice has an intrinsic value that must be maintained, and legal certainty in the broadest sense is of crucial importance”.

That is why, as the Director of Public Prosecutions states, “there is no fundamental conflict between good crime-fighting and human rights”. The two follow as one from an understanding that is built over time, and society has matured to the point that we must take into account the extent to which punishment has failed.

Discord within the police

This is a controversial issue, and a circular on the right to an effective remedy (and the state’s duty to realise this) will possibly infuriate some. However, it is the natural step forward. First, the Higher Prosecuting Authorities will clarify another issue that is intimately related to the principles that must be weighed heavily to maintain a humane, liberal rule of law. The weight of these principles ensured the Director’s support for the proposal of the Royal Commission to remove punishments, and it should not be ignored when it comes to the rights of the persecuted, even if that would be convenient to the status quo.

The fact that the police is divided on this issue is also no reason to postpone a resolution. On the contrary, it is another excellent reason to map out rights. Clearer guidelines in the field of human rights will certainly be upsetting for many, but it will also mitigate the disagreements that have formed.

After all, differences should be easy to resolve. On the one hand, there are police officers like Law enforcement against prohibition (LEAP) who realise that the Narcotics Act has made matters worse, that it may have been without a proper constitutional foundation, and that it has ruined the good name and reputation of the police. These police officers have gone before the Norwegian Parliament to ask the politicians for help, as the average policeman deals out punishment on autopilot. On the other side are the NNPF and those officers who want penalties for use and up to 21 years in prison for participating in the illegal market. The reasoning behind their argument speaks volumes.

The NNPF has a very different mindset for alcohol and cannabis users – one based on liberal principles and another based on totalitarian thinking. It is to be noted that this double standard is based on prejudice, not reason. Yet, they not only rely on absurd logic based on an oversized enemy image and a reversed presumption of freedom, but they also distort the law of supply and demand into a victim and abuser context. From there, the dehumanising effect of the drug-free ideal is overlooked, and the corruption of the rule of law is ignored.

It is psychologically understandable that the prohibitionists are standing their ground. The fear of the unknown is great, but it is well documented why a human rights perspective is incompatible with punishment. Instead, human rights require a drug policy characterised by far more holistic thinking, as LEAP wants, and support for the NNPF is, therefore, indicative of a dysfunctional culture that has spread.

It is impossible for human rights to be defined within the narrow framework that is accepted by the prohibitionists. Despite this, the police, in their daily work, uncritically continue the persecution of offenders and the cognitive dissonance that arises when human rights are discussed, indicates that the prohibitionist ideology has an unhealthy grip on employees.

In this sense, the police and prosecution authorities, just like the persecuted groups, are victims of a mass formation psychosis that society must find a way out of. The public panic that the Royal Commission documented continues to affect individual minds unduly, and the Director of Public Prosecutions can now make an important contribution.

Originally published 16 June 2020 in Vårt Land

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