The shift of the fixed penalties

At the end of 2013, the provisions on fixed penalties for hemp consumption entered into force. At the time, these were anchored in NarcA. Now they are being transferred to the completely revised Fixed Penalties Act. However, the deciding factor will be the ordinance.

After the long discussions on legalization, decriminalization and the opportunity principle, which the National Council ended in 2004, the four-pillar principle was transferred to the Narcotics Act (NarcA) and as a consolation, there was the fixed penalties à 100 francs for police-observed cannabis use, which was also anchored in the NarcA. From October 2013, the first affected persons received such fixed penalties (OB), which is nevertheless a somewhat milder punishment than a report with a fine and fees. In the meantime, all cantons apply OB, although there are very large cantonal differences.

For several years there have been discussions to extend fixed penalties from the area of road traffic to other laws and to combine it in a totally revised OB Law (OBG) (until now only OB of the Road Traffic Law are listed there).

The new OBG will now include minor violations from the laws concerning foreigners, asylum, unfair competition, nature and homeland protection, weapons, alcohol, road traffic, national road tolls, inland navigation, environmental protection, foodstuffs, protection against passive smoking, narcotics, forestry, hunting, fishing, as well as the law on travelers' trade (but not those from administrative criminal law).

In March 2016, the Councils adopted the text of the completely revised OBG. The referendum deadline is July 7, however, no one seems to have filed a referendum against it. The Federal Council will determine the entry into force, as well as the content of the ordinance (and only this will clarify what is really at stake). Both are still open.

Some provisions have been laid down in the law: The above list of laws, the contravention of which can be punished by OB. The fixed penalty has a maximum of 300 francs. The cantons must still designate the police bodies and authorities that may issue such OB. OB are only possible for offenders who are at least 15 years old. For the NarcA a minimum age of 18 years is required (the younger ones are still reported). The Federal Council lists in an ordinance those contraventions that are to be punished by OB and determines the amount of the fine. Only if an offense is included in this list, there can be an OB for it, otherwise it will be reported as before.

An anti hemp group from the National Council wanted to use the deliberations to abolish the OB for cannabis use already again. For this they had found an elegant way: They only opposed the basic possibility to punish transgressions of NarcA in the OBG with OB and demanded the deletion of the corresponding paragraph. However, the deletion of the OB provisions from the NarcA listed further down the line would have remained in the OBG…. However, this squeeze was defeated: The project failed with 123 votes against 51 and 6 abstentions - the councils had just decided on the OB for cannabis.

The main change is that the OB for cannabis use are now specified not in a law (NarcA), but in an ordinance to the OBG. This means that the Federal Council (and no longer the Parliament) determines these “details”: For which transgressions is there now OB? What is the amount of the fine for them? Ordinances can be changed more quickly than a law.

The most likely variant is that the Federal Council will simply list the consumption of cannabis in the OB list and set an amount of 100 francs for it. At least, these are the intentions from the message on the OBG. But the Federal Council can fan this out further, for example also listing possession or cultivation of some plants. At present, however, it seems unlikely that the Federal Council will go further here. All contraventions that are not listed in the ordinance to the OBG can therefore still not be punished by the police with an OB, but must be reported.

Whether the cantons will follow the provisions of the revised OBG more precisely and similarly than they do today (where there are massive differences) remains to be seen - in any case, it seems to be a goal. But first, the referendum period must now expire and then the Federal Council will submit a proposed ordinance, i.e. the concrete OB list, to the cantons for consultation. Only in these discussions will it be decided how exactly to proceed with the OB for cannabis.