Prosecution stop: Legal options

The number of prosecutions has fallen in recent years. But over 20,000 people a year are still prosecuted by the police and punished by the public prosecutor's office or the courts. Perhaps we could still get something out of minor consumption in the federal court.

Cannabis (from 1 % THC) is still prohibited, even very strictly prohibited. We have outlined the levels of illegality in our Shit happens 15 and refer to them here: Shit happens 15

In Legalize it 102 and 103 and on our statistics pages, we have presented the development of prosecution intensity and refer here to the charts printed or presented there.

At contraventions and misdemeanor we see a sharp increase after the lost hemp vote in 2008, followed by a sharp change in contraventions from prosecutions to fixed penalties and finally a dramatic decline in the number of cases. We see a similar trend with misdemeanor.

The NarcA was essentially the same during this time, only the provisions on administrative fines were added (from October 2013, as shown in the infringement chart). But why did the numbers fall so sharply? Initially, the police wanted to give the new fixed penalties for a lot of things and save themselves the fines (i.e. not only for observed consumption, but also for possession of up to ten grams). However, this was not and is not in the law. So those affected tried to challenge this legally.

In a first step, it was possible to achieve before the Federal Supreme Court that possession of less than 10 grams without observed consumption (i.e. simple carrying) may not be punished, just as the law states: something defined as unpunishable may not be punished in a constitutional state. Even if the police regarded this provision as a “mistake in the law”: Punishments are not permitted there.

In a further ruling, this was also clarified for young people: it is not punishable for anyone. Again: this is how it is defined in the law.

In a third ruling, a victim went to court who had called Sven in 2019 because of a horrendous fine for a few grams (around 1,700 francs). After four years and with the help of many activists (interested lawyers, deficit guarantors, argumentation developers), the Federal Supreme Court ruled in 2023 that such a small quantity is not punishable and may not be confiscated.

We believe that these three rulings and the general overloading of police forces and public prosecutors' offices have led to a decline in repression. So we can also achieve something legally, even with a tough law. But this requires those affected who are willing to endure a years-long legal process; supporters who can provide guarantees for deficits; legal experts or lawyers who really want to get to grips with this issue and also an office where all these threads come together and are kept active during this years-long process.

Consumption is actually prohibited (contravention). However, in minor cases, a penalty may be waived or a warning issued. However, these provisions in NarcA are practically never applied. In its rulings on small quantities, the Federal Supreme Court has repeatedly mentioned that it would not punish the consumption of such small quantities, but would include this under minor cases. The interpretation of NarcA would therefore make sense again…

So there might still be something to be gained here. However, these paragraphs are optional paragraphs. So it is not as clear as in the case of small quantities: there it says “is exempt from punishment”. It's not certain that the Federal Supreme Court really wants to interfere with the lower courts. But there is a certain possibility. If it succeeds, possession of up to ten grams as well as consumption of this quantity (at least in private) would be exempt from punishment. That would not be nothing…

• A good case: consumption on record in the range of a minor amount, consumption at home, no further offenses or further complications.
• Persistent sufferers: The whole process can take a good four years.
• Financial support: If you lose, it can quickly cost several thousand francs.
• Legal support: The current lawyer would almost certainly be willing to help out here. But that would have to be clarified.

Do we want to start such a project? We look forward to hearing your opinion.

We probably can't get any more out of it legally. For more, we need a change in the law (and a majority for it). Our legal advice will therefore be necessary and useful for a long time to come.

The current NarcA is still in force and is a very tough law that should never be underestimated!