The minor amount of hemp: Does unpunished mean unpunished?

10 grams of cannabis is considered a small amount and this is exempt from punishment. This is what the Narcotics Act says. Nevertheless, there was practically always a fixed penalty or a fine when this was detected by the police. In principle, everything above 1% THC is prohibited and handling it is punishable. “Narcotics of the effect type cannabis” - as hash and weed are called in the Narcotics Law (NarcA) - are prohibited narcotics according to Article 8 NarcA. The article 19a item 1 itself criminalizes the consumption. However, there are two provisions that limit or relativize this total prohibition:

⇒ NarcA 19a item 2: In minor cases, proceedings may be discontinued or a penalty may be waived. A warning may be issued. Here it says “may” - so this article was and is very rarely applied.

⇒ NarcA 19b para. 1: Whoever prepares only a minor quantity of a narcotic drug for his own consumption or supplies it free of charge to enable simultaneous and joint consumption by a person of more than 18 years of age is not liable to prosecution. This is a mandatory provision. It does not say “may”, it says “is”. Item.

⇒ NarcA 19b para. 2: 10 grams of a narcotic drug of the cannabis effect type is considered a minor quantity.

The specification of the number of grams has been in effect since October 1, 2013 (together with the introduction of the egulatory fine provisions in Articles 28b-28l, which, however, only concern the consumption of cannabis).

On this date we had published our 9th edition of the legal aid brochure Shit happens. In it we wrote that according to NarcA the possession of up to 10 grams of cannabis for one's own consumption or also handed over among adults for simultaneous and gratuitous consumption is quite clearly exempt from punishment. “Quasi-legal” we called this range of handling weed and hash. (However, the consumption is always prohibited).

By the way, since 1975 there was this minor amount in NarcA, however, it was not fixed grammatically earlier. In fact, this provision was not applied, but fines were blithely issued.

But with the definition of the minor quantity in grams, this provision could not be further ignored? Well, the police and public prosecutors could very well and saw no reason at all to deviate from their practice.

Despite the rather clear initial situation, many of those concerned continued to receive a fixed penalty or a fine if the police found them with less than 10 grams. The Zurich cantonal police, for example, had explicitly stated in their service orders that such possession (which was not punishable by law) was to be punished with a fixed penalty (100 francs).

What should penalized persons do now? Those who had received a fixed penalty for 100 francs for an unpunished possession were rightly annoyed - but how could those affected have got their rights? Only by not accepting the fixed penalty, choosing the ordinary procedure, then receiving a summary penalty order with a fine and fees (at least 250 francs), contesting it and then having to wait for the first instance court session.

A very big effort therefore - and in addition the risk that the costs could become higher than at the beginning. Because even if the fine would have been cancelled (which I would have thought very likely), the fees would have remained with the persons concerned (which I would also have thought very likely, because in such cases the authorities like to argue that it is a forbidden substance after all, that they should have initiated the criminal proceedings, etc.). Such costs can quickly amount to 500 francs in a district court, even without a fine.

Therefore, I could not recommend this as a standard procedure to all concerned. But there were some penalized people who just didn't want to take it and take the experiment upon themselves. So they did not pay the fixed penalty they had received. And waited. Some of them waited a long time.

A stroke of luck was that Till Eigenheer, a Jus student, had also come to the conclusion, as we had, that this practice did not work at all. He then represented a person who had been fined before the Zurich District Court. As expected, the court acquitted the defendant (it was about the possession of 8 grams detected by the police in March 2015). The verdict dates from September 2015 - we see how long those affected have to wait (at least) in such cases. But the surprising thing was that not only was there an acquittal, but the defendant also did not have to pay any costs for the proceedings and his defense lawyer even received a well-deserved 200 francs compensation for the effort. The only thing was that the eight grams were confiscated because they should have been used for an illegal act, i.e. consumption.

But as it happens, even this clear verdict of the Zurich District Court was not enough for the prosecuting authorities. They missed the deadline for the appeal to the cantonal court, but still thought that such a “single” verdict “only” from the district court did not change their practice. Even after some political skirmishes in 2016, the decision remained the same: one would have to wait for a new case, which would then be decided by the higher court at some point.

But before that came, there was an interesting turn of events: In September 2017, a federal court ruling came into circulation that made the authorities' practice look even more questionable, if not downright illegal. The case concerned 0.6 grams of cannabis found on someone's person in Basel-Stadt in December 2015. Although the person was not fined for this, he had to pay the procedural costs of 105.30 as well as a procedural fee of 200 francs.

Such a half-punishment is quite common in Basel: The proceedings are dropped and thus no fine is levied, but the costs of 305 francs are after all not without… The next instance cancelled the 200 francs procedural fee, but the procedural costs remained.

However, public prosecutor Basel-Stadt wanted to collect both amounts and went to the Federal Court. There it got a multiple damper: “According to the jurisprudence of the Federal Supreme Court, a cost order in the case of acquittal or discontinuation of proceedings violates the presumption of innocence.” The whole thing is a bit more complicated than that, but the Federal Court comes to the conclusion: “It follows that the respondent should not have been ordered to pay the costs of the proceedings even in part. The further request of the complainant that he should have had to bear all procedural costs is thus unfounded, …”. Thus, the public prosecutor completely came to nothing.

Unfortunately, the Federal Supreme Court left open whether in such a case criminal proceedings could have been started at all. But it states: “It is certain that from the beginning no criminal offence was fulfilled.” Thus, criminal proceedings would probably be unnecessary! It also did not want to comment on whether the authorities could have actually confiscated the few grams of cannabis. It described this question as controversial.

Following this ruling, most police forces and public prosecutors in Switzerland backed away, albeit reluctantly, from punishing the unpunished quantity. But the public prosecutor St. Gallen still wants to start investigations in such cases and find out if there is something criminal to prove (consumption in the past or passing on). And also other law enforcement agencies may well start interviews or other investigations to find evidence of consumption that has already taken place.

So beware, you should never feel safe in this area. Consumption is always punishable. This means that the exemption from punishment for the possession of a small amount of cannabis is really limited to the possession and the preparatory acts for consumption. As soon as a consumption from the past (the last three years) can be proven, this is always punished.

This also applies to a confession in a protocol. So if the police starts an interrogation and asks about past consumption and further, then it becomes tricky. Whoever says: “I smoked a joint the day before yesterday” can already be punished for this statement, even without further evidence. Therefore, anyone who is questioned by the police must always think carefully about the answers or refuse to answer. Whoever confesses to consumption in the past will also be fined for it! The possession of a small amount of cannabis may therefore only serve for personal consumption in the future (see Basel-Landschaft judgment at the end).

The consumption, however, would not have to be punished. There would still be the light case, which can end with a discontinuation of the proceedings or a warning. But this provision is practically never applied. But the Federal Court mentions in its ruling in passing: “According to the practice of the Federal Court, the consumption of small amounts of drugs falls under Art. 19a No. 2 NarcA”. Therefore, a warning or simply the discontinuation of the proceedings would be the right thing to do. There should not be a fine for it at all. The law enforcement agencies should not like that either - if they take note of it at all.

In principle, the punishment of the consumption is simply a disregard of the freedom rights of our federal constitution, hardly proportionate and should be omitted. The fixed penalties are applicable to the consumption, but only the observed, so mostly in public. This could still be accepted if a society does not want to see such activity. But punishing private consumption is disproportionate. All those who participate should think about this. The Federal Court ruling shows the direction for this - based on the current legal situation. But whether this will ever find its way into the practice of police forces and public prosecutors' offices? Doubts are warranted.

In any case, we will observe the further handling of the minor quantity and the minor case and are happy to receive any documentation on this.

The judgments

⇒ Federal Court decision 6B_1273/2016 of September 6, 2017

⇒ Zurich District Court judgment of September 10, 2015

⇒ Below a verdict of the public prosecutor BL, which shows the border between permitted and prohibited in an understandable way.

Discontinuation order of public prosecutor Basel-Landschaft, September 26, 2017

It is decreed:

1. the criminal proceedings are discontinued (…).

2. the seized objects (as in the original) (1 minigrip with approx. 5 gr. marijuana, 1 used joint, 1 glass with approx. 2 gr. hashish, 1 hemp mill) are (…) confiscated and (…) confiscated and destroyed.

3. the costs of the proceedings shall be borne by the state.

4. the defendant shall (…) not be awarded any compensation or satisfaction.

Reason On Saturday, May 13, 2017, at 10:40 p.m., the defendant was controlled by the police in Aesch (…). (…) Thereby, about 5 gr. marijuana and about 2 gr. hashish, as well as a used joint and a hemp mill could be assigned to him. Due to the situation, the Basel-Landschaft police made a report and reported him to the public prosecutor Basel-Landschaft. Based on the police report, the public prosecutor Basel-Landschaft issued a summary penalty order against the defendant on July 18, 2017 for multiple violations of the Narcotics Act. The defendant filed an objection against this summary penalty order in due time on July 31, 2017. On the occasion of the interrogation at the public prosecutor Basel-Landschaft on September 6, 2017, the defendant confirmed the possession of the seized narcotics, but not the consumption of them. He had the intention to consume narcotics, but did not get to do so, as he had previously been controlled by the police. The defendant's objections regarding consumption cannot be refuted. In this factual and evidentiary situation, the defendant cannot be proven to have consumed narcotics. Accordingly, the proceedings are to be discontinued for lack of evidence (…). The mere possession of less than 10 grams is not punishable. (…)

Last modified: 2024/03/27 08:56

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Shit happens 15 (Summer 2023)

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