Quasi legal: the small amount of cannabis

Laws

The penalty-free small amount
Narcotics Act NarcA, SR 812.121, article 19b, paragraphs 1 and 2, in PDF (2021) on page 18
Non-Collectability
Report of the Committee for Social Security and Health of the National Council on 04.439 (OB proceedings), 2.9.11, ⇒ PDF, page 16 (original page 8210) not available in english

Conditions

We call this quasi-legal because everyone is allowed to possess up to 10 grams of THC-containing products for personal consumption without punishment, but: you must not have consumed them yet, or at least not officially observed / on record / provable, since the consumption is always punishable.

Tips

Anyone who is stopped by the police, does not consume and has less than 10 grams with them, should not answer questions about previous consumption or deny it (lie). Because as soon as someone confesses to even one joint from the past, the police must start the ordinary procedure initiate ordinary proceedings.

Penalties

Those who do not (have not) consume, but possess up to 10 grams for their own consumption, cannot, according to the law not be punished. However, as soon as there is a well-founded suspicion that consumption has taken place after all or that more than 10 grams are involved, a normal procedure can be initiated.


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Quasi legal: the small amount of cannabis

An old destiny...

Since the existence of NarcA, there is a whimsical wording in all the prohibitions, penalties and all the illegality: the article 19b. This states the following: Despite the basic punishability of handling products containing at least 1.0% THC, it is not punishable who only prepares a small amount for his own consumption. Also the delivery for simultaneous, gratuitous consumption among adults is exempt from punishment in this context.

...was also clarified grammatically

Since October 2013, this penalty-free small amount for hemp has been clearly defined by law throughout Switzerland: 10 grams of “Narcotics of the effect type cannabis” (this is the name of our good herb in NarcA) is considered a minor amount. By the way, the THC content can be as high as desired.

A part of the order fine bill

This gram limit was introduced together with the administrative fine bill in order to be able to implement fines for cannabis consumption even in the case of possession of a small amount. But this provision has a life of its own: Anyone who possesses less than 10 grams for personal use and has not yet consumed it is not liable to prosecution at all and thus, according to the law, cannot be punished. This applies only as long as someone is not consuming (that would usually result in a fine) and also has not yet consumed (that would result in a report with a fine and fees).

The quasi-legality...

In a nutshell, anyone who possesses up to 10 grams intended for personal consumption, but has not yet smoked any of it, remains unpunished. And the piece of hash, the little bag weed? This is probably the funniest part: it may not be confiscated. Unfortunately, this is not stated in the law, but it is derived from the exemption from punishment. In the explanations to this legal provision it says: “It is not possible to confiscate a minor amount of cannabis that the offender is only carrying, since the possession of minor amounts of a narcotic (…) is exempt from punishment.” So 10 grams of cannabis is quasi-legal.

...is not applied

However, no police force adhered to this actually clear regulation. In Zurich, the police order even stated that in such cases (possession of less than 10 grams without consumption) a fine had to be issued.

Other police forces tried to determine other illegal acts through questioning (for example, consumption in the past), so that they could report them for this.

Although the legal provisions apply to the whole of Switzerland, there is still enormous scope for the cantonal and municipal police forces in their day-to-day implementation.

To make an objection or not?

Those who received a fine over 100 francs for possession of a few grams of cannabis generally did not fight back: the effort for the legal fight seemed too great for most. Even those who received a report and a fine often shied away from the effort (and the possible higher costs if they lost in court).

A first judicial clarification

But some wanted to know exactly and did not pay the fine, demanded the ordinary procedure, were fined normally with a penal order and objected to it. Finally, one such case reached the Zurich District Court. In September 2015, the court ruled that the possession of an unpunished quantity really cannot be punished and acquitted the person concerned.

However, the court did not confirm the non-confiscability. The seized hemp should have been used for the preparation of an illegal act (the punishable consumption). Therefore, the material would not be released again.

However, the police in Zurich did not want to change their practice. Even this clear verdict was not enough for them: One would have to wait for a verdict of the higher court.

The Federal Court sees it the same way

But before that happened, a September 2017 Federal Court ruling brought clarity, stemming from a Basel case: ⇒ BGE 6B_1273/2016 of 6.9.2017.

The Federal Court unequivocally stated that exemption from punishment really means exemption from punishment and that no criminal proceedings should actually have been initiated. The costs of the proceedings may also not be passed on. Unfortunately, it left the question of confiscation open. Further appeals will be needed to clarify this.

By the way, the penalty-free possession also applies to Juveniles. This required yet another ruling by the Federal Supreme Court (July 2019), because the Chief Juvenile Prosecutor's Office (Canton of Zurich) simply did not want to see this clear fact.

And the "easy case"?

But the Federal Supreme Court gave another hint in its ruling: The (punishable) consumption of small amounts was to be taken under the “light case”. A warning would therefore suffice - or the proceedings could be dropped altogether. But the law enforcement agencies do not want to know anything about that (yet?).

The previous handling of the minor amount

A strange police stop in late 2018: Charged with possession of "hard drugs"

Summary of the situation at the end of 2017: The worst seems to be over. The article The minor amount of hemp: Does unpunished mean unpunished? summarizes various rulings on the minor quantity.

Most often, the immunity from prosecution of the minor quantity is ignored. There are now at least three variants of how the police proceed in such cases. Details in the article Introduction of fines and dealing with the minor quantity from the summer of 2015.

Updates on the de minimis quantity

2020

Form for the small amount of cannabis from Ticino

This is the first police form that we know of that is entirely dedicated to the topic of “possession of cannabis up to 10 grams with impunity” (both examples are from 2020):

2019

2018

Fall 2017

Fall 2016

Examples of discontinuation orders for minor quantities

Discontinuation order Baselland

Example of a discontinuation order due to a minor quantity. Here the whole argumentation is summarized again nicely:

Hiring order Baselland, page 1 Cessation order Baselland, page 2

Discontinuation order from the Hinwil governor's office

First, there was a fine for possession of an unpunished minor amount of cannabis. Only after an appeal and a interrogation the authority followed the law and stopped the proceedings.

Discontinuation order Hinwi governor's office, page 1 Discontinuation order of the Hinwi governor's office, page 2

Discontinuation order by the Bülach governor's office

Consumption was not proven, possession of hash and weed was clear - but in a minor amount. The Bülach governor's office discontinued the proceedings:

Discontinuation order Statthalteramt Bülach ZH

Discontinuation order Ticino

Possession of less than 10 grams of weed or hash for personal use is not punishable. Therefore, there was a discontinuation order.

geringfuegigemengetessin2018a.jpg geringfuegigemengetessin2018b.jpg


Court rulings on the de minimis quantity

Does the de minimis amount apply to juveniles? (2018/2019)

In July 2019, the Federal Court has now decided this case: The exemption from punishment of the minor amount of cannabis for own consumption also applies to adolescents. In this ruling, the Federal Supreme Court fully confirms its position of 2017:

The Federal Court provides even more clarity (2017)

A first judicial clarification (2015)

In September 2015, the Zurich District Court heard a case involving a minor amount of cannabis and acquitted the person concerned acquitted. It took the court 13 pages to actually assess an act that, according to the law, was exempt from punishment. But at least the court managed to do what the police and the city magistrate's office just don't want to grasp.
Here follows the facsimile of the ruling, which also clarifies that there is no need for a cannabis fine a consumption is mandatory. So the court agrees with our interpretation of the law. Only the non-recoverability is not considered by the court, which contradicts the explanatory text of the Commission.

Judgment of the District Court of Zurich dated 10.9.2015 - minor quantity
Judgment: minor amount, page 1
Judgment: de minimis, page 2 Judgment: de minimis amount, page 3 Judgment: de minimis amount, page 4
Item 4.4 - Cannabis for
the own consumption
Judgment: minor amount, page 5 Judgment: de minimis amount, page 6 Judgment: de minimis amount, page 7
Item 4.9 - General impunity
for possession up to 10 grams of cannabis
Item 4.10 - fines only
for consumption, not for possession
Cannabis must still
are collected
Judgment: de minimis amount, page 8 Judgment: de minimis amount, page 9 Judgment: de minimis amount, page 10
The acquittal
Judgment: de minimis amount, page 11 Judgment: de minimis amount, page 12 Judgment: de minimis amount, page 13



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en/thc_recht/quasilegal.txt · Last modified: 2021/10/15 08:53 by fabian
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