The case of Roar Mikalsen
Photo by: ANDREAS SMAALAND
In April of 2011, the Norwegian author Roar Mikalsen was imprisoned for 8,5 years for cannabis-related offences. Due to consistent serious legal misconduct preceding and following Mikalsen’s imprisonment, his case now holds potential transformational implications for the drug laws internationally.
Prior to his imprisonment, Roar Mikalsen has repeatedly been denied his right to a fair trial, which is a violation of the international human rights conventions. On his way through the justice system Mikalsen stated that he did not recognize the drug laws, as he claimed they were the result of a corrupt political process and that they, in fact, are a grave violation of basic human rights.
These claims automatically gave Mikalsen (according to the Rule of Law as articulated in ECHR Article 6 & 13 and ICCPR Article 2 & 14) the right to defend himself on Human Rights grounds and, hence, the opportunity to prove his allegations in an independent, impartial and competent court. The judges, however, denied him this right and would not allow Mikalsen to submit the evidence that proved his case.
Mikalsen has written a 560p. book called Human Rising that proves the violation in detail. He wanted the courts to use this book as his argument for legalization of all drugs and in addition to his book he had its claims backed up by several international drug reports, experts, and declarations.
However, the courts (and the Norwegian Justice Department) were not interested. Throughout all levels of the justice system they denied Mikalsen his right to a human rights-based defense, making it clear that the Norwegian authorities do not recognize human rights law in the area of drug policy.
The European Court of Human Rights
Following his unlawful imprisonment (a violation of ECHR Article 5), Mikalsen took his case to the European Court of Human Rights. His plea was accepted by the Court on the 16th of March 2011, (case no. 67078/10) along with all of his evidence proving a human rights violation and how the Norwegian authorities had not only denied Mikalsen but also all drug law violators (30-40% of the prison population) a defense against the drug laws.
What happened next, however, was that the case was reviewed in a single-judge setting and that this judge excused himself with his own/the Court’s incompetence and dismissed the case.
Having a right to have the issue determined by a competent court, Mikalsen filed a complaint to the President of the Court and the Secretary General of the Council of Europe, asking them to intervene and see to it that the drug users of Europe had an opportunity to have their rights determined. Unfortunately, these officials refused to get involved, and so Mikalsen took the case to the UN Human Rights Committee
The UN Human Rights Committee
The Human Rights Committee received a thorough complaint dated December 21, 2012. This complaint elaborated on how the drug laws were incompatible with fundamental human rights principles such as those of non-discrimination and proportionality, and along with his own evidence, he provided the Committee with copies of David Nutt’s Drugs: Without the Hot Air and Douglas Husak’s Legalize This: The Case for Decriminalizing Drugs. All in all, the Committee received some 1000 pages documenting how our drug policies were a violation of human rights law, and Mikalsen awaited their response.
Almost two years later, he still had not heard back from the Committee, and so he wrote another communication detailing the evidence and the degree to which prohibitionists hitherto had denied the unfortunate consequences of their policies. He presented evidence that several legal scholars had looked into the matter and concluded as he had, and he summarized four questions that must be answered to the satisfaction of an impartial and competent court if the prohibitionists insist on continuing their policies.
Shortly thereafter, he received a response from the Committee, explaining that they had sent a letter on April 5 2013, and that this letter informed him that the complaint was inadmissible because the matter raised was outside the scope of the UN Human Rights Conventions.
Mikalsen, however, has never seen this letter, and as he claimed that the Committee’s decision to deny the drug users the protection of human rights law was a gross miscarriage of justice, he wrote a letter dated November 5, 2014, elaborating on the implications of their judgment and asking them to either reverse their decision or explain their reasons for asserting that the drug users somehow were exempt from a catalogue of rights that is inherent to every human being and that we are all supposed to enjoy.
The Committee, for its part, would neither explain their position nor reverse their decision. And as they now effectively—and without any legal reasoning to support their decision—had denied some 300 million drug users their right to a fair trial and an effective remedy against the drug laws (both of which are guaranteed by the Bill of Rights), he wrote another letter to the UN Secretary General and the High Commissioner for Human Rights, claiming that the Committee had flouted its duties to the Covenant and asked that they intervene.
The Argument for Legalisation
This is the situation today. We are eagerly awaiting their response, and if you want to know more about the case, Mikalsen’s letter to the UN Secretary General (or High Commissioner for Human Rights) is recommended reading. It will give you a great introduction to the essence of the rights-oriented debate and the questions it raises, and if you want a more thorough understanding of the legal reasoning that supports the argument, you should read his communication of December 21, 2012.
The argument for legalization of the illegal drugs is too substantial to be explained in detail here, but its fundamentals rest upon two basic human rights principles—the equality/non-discrimination principle and the proportionality principle:
He argues that the drug laws violate the equality principle being that: (1) We have divided drugs into legal and illegal categories; (2) there are no scientific or rational reasons that can explain why the drugs are divided this way (the illegal drugs are no worse a threat to the individual and society than the legal drugs, alcohol and tobacco); and (3) most drug policy experts agree it that a health-based approach, like we have towards the users of alcohol and tobacco, is the most reasonable approach. This being so, if the State cannot rationally explain their reasons for criminalizing people who use illegal drugs, we are dealing with a clear violation of several human rights articles (for instance, ECHR Article 14 and ICCPR Article 26) which prohibit discrimination of all kind.
Mikalsen also argues that the drug laws violate the proportionality principle since they have not had any positive effect on the supply and demand of illegal drugs, but instead have caused many unintended and harmful consequences worldwide.
In short, he argues, that the “cure” (drug laws) is worse than the “disease” (drug use) and this being so we have a clear violation of the proportionality principle, which is an integral part of many articles in the human rights conventions.
Obviously this is a very interesting development in the area of drug policy.
For the first time ever courts and politicians are asked to consider the drug laws’ relation to Human Rights Law.
It is about high time, as more and more international experts and reports confirm our drug laws’ devastating effect on individuals and society.
It is also interesting that the state of Norway is the defendant in this case, being that the country has one of Europe’s most backward and least successful drug policies. Norway is one of the very few countries left who builds its policy on the idea of a totally drug-free society.
To pursue this irrational goal the state has enacted one of Europe’s most repressive drug laws; it has built up Europe’s biggest law enforcement apparatus (per citizen), harsh sentences, a huge police force, and high conviction rates (often based on no direct evidence), all of which has done nothing to help eradicate the drug problem.
Instead, the result of Norway’s war on drugs (or let’s call it by its correct term; war on drug users) has been a steadily increasing prison population, a steady increase in drug-related crime, and for over 20 years now we have been at the top of Europe’s drug-death statistics.
The Norwegian authorities have pursued this policy for many decades without regard for its consequences, and, as proven by Mikalsen’s case, have gone so far as to actually undermine the rule of law in order to keep these repressive and inhumane laws in place.
There has been an increasing trend globally in the direction of a more humane and sensible approach in the area of drug policy, but Norway’s politicians have not been willing to reconsider their zero-tolerance approach.
This being so it is certainly interesting to see this lawsuit coming out of Norway. A verdict in Mikalsen’s favor, however, will not only be a big problem for prohibitionists in this country. It will be the beginning of a wave of legalization that will have to be worldwide, and the sooner drug policy professionals and activists become aware of this the drug laws’ incompatibility with human rights law, the sooner it will happen.
For too long the states have been able to defend the drug laws with moralistic portrayals that demonize and dehumanize drug users, even though it’s been clear for a long time that these laws are both counterproductive and harmful. These laws have not only corrupted society and given birth to the largest criminal network in the world, they also affect most severely the most vulnerable part of the population—the people that the human rights law especially intends to protect.
So far the media had chosen not to report on any of this. But the fact remains that the drug laws have an obvious explanatory problem when compared to the principles of human rights.
This blog has been created in order to publicly release information about Roar Mikalsen’s case and to keep you updated on its developments. Here you will also find copies of various documents and correspondence related to the case.
How can I help?
There are various ways in which you can help Roar and many others by helping to bring on a significant change of drug laws worldwide. The first thing you should do is learn more about the legal reasoning behind the argument. It is pretty straightforward, and to the degree you enlighten yourself on this issue, you can help yourself and others. The fact is that the rights-oriented debate raises some questions that prohibitionists cannot answer properly, and the more attention these questions receive—and the more people get involved in pushing the rights-oriented debate on their respective governments—the faster change will happen.
In addition to contacting your own officials, you can also contact Norwegian government and UN officials and express your concerns about the way they hitherto has denied the drug users their right to a fair trial. You can demand that they answer the questions raised by the rights-oriented debate, and, should they fail to do so (and they will), that they work to ensure our human rights are properly protected.
The only way this can be done, is by letting us have the issue reviewed by an independent, impartial and competent court. According to the International Bill of Human Rights they have an obligation to let us have this issue properly investigated, so you should not be afraid to contact your government representativesand inform them about their duties. Needless to say, they are paid with your tax money and there to represent you, so please join us in fighting the good fight!
“It is for you to realize these rights, now and for all time. Human rights are your rights. Seize them. Defend them. Promote them. Understand them and insist on them. Nourish and enrich them!”
–Kofi Annan, former United Nations Secretary General–
You can also contact Roar directly in writing to: