The first partial revision of the partial revision of the NarcA

The referendum deadline has expired: Fixed penalties for cannabis use are coming. The date of entry into force is still open, but the text of the law is definite. So let's take a closer look at it. Because everything is not clear yet…

We have reported on this again and again in small chunks at Legalize it! The fixed penalty model has come through after many years of changeable deliberations. Again and again it looked like failure. On September 28, 2012, the final text was published in the Federal Gazette. The referendum period ran until January 17, 2013 and passed unused. Now it is over all hurdles and all that remains is for the Federal Council to enact it.

What was reported in the media and what is really in this text are different worlds. In the media it sounded as if smoking pot would only be punished with 100 francs if you have less than 10 grams of hash or weed with you. But the reality is a bit more complicated…

This is only about a very specific section of the possible illegal actions around THC. The box on the next page shows a summary of the situation today and tomorrow.

Basically, any handling of products above 1% THC is a misdemeanor (Art. 19). Consumption, however, is “only” considered as contravention (Art. 19a) - so far. The exceptions (minor case, minor amount) have rarely been applied by the judges.

Now clarifications are added to the existing text. First of all, the minor amount for personal consumption, which is actually already exempt from punishment but not defined in terms of amount, will be defined by law for the first time: 10 grams of material with more than 1% THC is now considered a minor amount. This is already punishable today, so now up to 10 grams of hash or weed will soon be punishable. So there is also no fixed penalty for it. The piece of hash or the bag weed may also not be confiscated, which is certainly the funniest consequence of the bill! But this only applies if you are only in possession but not consuming, but preparing a future consumption with the possession of a maximum of 10 grams.

As soon as someone smokes a joint and possesses less than 10 grams and is observed by the police, this consumption can be punished with a fixed penalty of 100 francs (if it is the only offense and the person is over 18 years old).

Only consumption directly observed by the police can be punished with fixed penalty. As soon as it is about unobserved consumption (in a interrogation or because of a THC test) or if one has more than 10 grams with him, the ordinary (previous) procedure must still be applied.

Thus, the fixed penalty is practically only relevant for smoking pot in public. But then it could make the punishment level predictable: It costs 100 francs, if one is caught by the police while smoking pot (and has less than 10 grams with him, which, by the way, are then confiscated after all). This is only possible if no other illegal act is committed in addition to the consumption. So you can't admit to any past consumption or major possession - otherwise the ordinary procedure has to be applied, which can end very differently at the moment: From a warning without costs to a fine with fees of about 1'000 francs everything is possible.

The Federal Council is free to decide on the entry into force. At the moment, the administration is still waiting for the cantons' opinion: How much time do they need for implementation? So for the legal anchoring in their legal system (in a cantonal ordinance, if necessary even by means of an amendment to the law), as well as for the establishment of the appropriate structures for the administration of the fixed penalties, the control of the payments, the initiation of an ordinary procedure (if someone does not pay or prefers to choose the ordinary procedure after all) and finally the police forces still have to be trained. Currently (February 2013), the cantons are in the process of clarifying these issues.

Only the cantonal implementation regulations will provide further clarification as to whether the fixed penalties will be implemented everywhere and in the same way.