The federal court confirms his views (2019)

Once again, the Federal Supreme Court had to rule on the impunity of a small amount of cannabis. This time it was about the possession of one gram by a young person. Although the Federal Supreme Court had already clearly stated its position in the 2017 ruling, the Zurich Chief Juvenile Prosecutor's Office wanted to know again. And lost all along the line.

However, the ruling also contains other interesting passages, for example on how to deal with the consumption of a small amount. Here, the Federal Court repeatedly advocates not punishing this.

On 8.1.17 a juvenile was controlled, on 23.1.17 the Juvenile Prosecutor's Office Winterthur issued a reprimand, on 29.6.17 the District Court Winterthur ruled, on 5.4.18 the Supreme Court of the Canton of Zurich followed and now on 2.7.19 the ruling came from the Federal Court. What you can see from these dates: Even a small case, with actually clear legal situation, needs two and a half years until the Federal Court clarification. This is also one of the reasons why only few defend themselves: The case may then remain pending for years. The public prosecutor's offices also know this: they simply issue a summary penalty order and can see whether the punished defend themselves - or, as in the vast majority of cases, simply accept this verdict. They have been successful with this in tens of thousands of cases over the past decades.

To be clarified here: Is the possession of a small amount of cannabis by juveniles punishable? For comprehension: The complainant is the Chief Juvenile Prosecutor's Office Zurich, the respondent is the lawyer of the accused.

This is where the Federal Supreme Court becomes fundamental and reminds us that in a state governed by the rule of law, acts that are not defined as punishable by law may not be punished. This is actually a truism, but the Office of the Chief Juvenile Prosecutor does not seem to take it to heart.

This topic does not really belong to the case, but the Federal Court repeatedly mentions that consumption (which is actually always punishable) in the area of consumption of a small amount does not fall under NarcA 19a1 but under NarcA 19a2. However, this article (light case for transgressions) is practically never applied. In such a light case, the proceedings can be discontinued, a warning can be given or punishment can be waived. Or rather: could be.

The Federal Court also reiterates here that NarcA 19b has been in force since 1975. And: That the consumption should continue to be exempt from punishment to a certain extent even since this revision. That is just again something that the law enforcement agencies simply do not want to admit. But we should stay on this topic.

Now comes the consideration of juveniles or how juveniles are to be distinguished from adults according to NarcA. But it sees with the minor quantity no distinction given.

Then the Federal Supreme Court also explains the protection of minors to the Youth Prosecutor's Office. “However, the protection of minors is not taken into account in NarcA with a harsher punishment of juveniles compared to adults. Rather, the legislature provided for the harsher punishment of dispensing (…) to juveniles (…).” And that makes sense. After all, we punish the distribution of spirits to juveniles, but not the possession of spirits by juveniles.

The power to report is not linked to a criminal conviction; here, too, the Federal Supreme Court explains the legal situation to the Office of the Attorney General for Juveniles. Juveniles at risk can be reported even without a criminal conviction prosecution. Note: Criminal law is not responsible for everything - nor does it make sense.

Ultimately, the conclusion for the complainant is devastating. One has to wonder what kind of “lawyers” are working there. But clearly, they are in good company: Practically no criminal authority wanted to interpret the NarcA the way the Federal Court did. And whether they will do it from now on, we will have to see. Therefore we are glad to receive summary penalty order-copies from all areas!

The confiscability of a minor amount is unfortunately not clarified by the Federal Court this time either, so it remains open.

Law enforcement agencies never really wanted to apply both the minor quantity and NarcA 19a, item 2. Instead, they complain about an unclear law that puts so much work on them. But it would be so easy, and the federal court is waving a fence post there:

For possession under 10 grams of cannabis, they wouldn't have to do anything at all; for consumption of a minor amount, they wouldn't even have to issue a fixed penalty. Just a little more moderation and concentration of the forces on the important problems!