Constitution says: we can smoke pot

“Everyone has the right to personal freedom, in particular to physical and mental integrity and to freedom of movement.” This article 10, paragraph 2 of our federal constitution gives us the right to shape our own lives - also with regard to THC consumption.

Peter Albrecht, professor in Basel and Bern, has already published quite a bit on the subject of criminal law. In the 6/2004 issue of “plädoyer”, the magazine for law and politics, he poses fundamental questions about the legality of today's narcotics law on 10 pages.

“Where does the state actually get the right to prohibit someone from using certain substances such as heroin, cocaine or cannabis?” is his initial question. For him, the consumption of narcotics is primarily an act of self-endangerment. Such behavior, however, is usually not punishable in our legal system - even the most extreme form of this behavior, suicide, is not punished. For him, the impunity of self-endangerment follows directly from Article 10, Paragraph 2 of the Federal Constitution cited in the lead. All people have the right to live their lives as they wish and may therefore also commit dangerous acts. Freedom is just also the freedom to do something that others do not find good. “Accordingly, there is also a right to consumption in this area (of psychoactive substances), and the strict prohibition of Art. 19a NarcA proves to be unconstitutional in this respect,” Albrecht writes.

The professor does not find much to gain from this argument. The protection of “public health”, a possible “social harmfulness” or even the costs that could arise from THC consumption, for example, are not reasons for illegalization for him. After all, costs do not justify criminal liability.

We, too, believe that any costs could be reclaimed from the users through taxation or incentive taxes. Criminal law, which is a very sharp instrument, is neither necessary nor permitted for this purpose. Criminal law should only be used where the rights of other people are affected.

But Albrecht doesn't stop at consumption - even actions that enable others to consume can't be punished just like that. “Therefore, it should be made clear here that the mere support of a self-endangerment entered into consciously and on one's own responsibility cannot constitute a criminal wrong.”

Albrecht further complains about the “excessive special justice, which stems from a very one-sided perception” of the law in force today. Albrecht does not think that the current law is bad at all; what he finds bad is above all the specific jurisdiction of the courts. He also clearly states that the NarcA applies, even if constitutionally there are many concerns. But he unmistakably calls on the courts to use the existing leeway in the law and thus incorporate the guarantees of the constitution. We think that this would certainly be possible in the case of consumption and preparatory acts. After all, Article 19 a) 2 states that proceedings can be discontinued in minor cases, and Article 19 b) of the NarcA even requires that no criminal liability exists when dealing with minor quantities. Here, the courts would have a lot of room for maneuver, which they could use especially with regard to cannabis. Because if they would set the minor amount of cannabis to 500 or 1000 grams per year, 95% of the legal consumption problems would be solved. Today, this negligible quantity is not applied at all or is based on gram fractions. Albrecht also complains about the “refusal attitude” of the judiciary towards the law and the disregard they have for the constitutional rights of freedom. According to Albrecht, only a new composition of the Federal Supreme Court can change this.