Are there no exceptions to criminal liability?

Two articles that inspire hope

Despite this comprehensive ban on THC products and THC use, there are two “good” articles in this law that put the total ban somewhat into perspective:

[Article 19(a)(2)].

“In minor cases, the proceedings may be discontinued or a penalty may be waived. A warning may be issued.”

This “may” article is freely applied (or, more often, not applied) by the judge, at his discretion.

[Article 19(b) “A person who prepares only a small quantity of a narcotic drug for his own consumption or for the purpose of enabling simultaneous and joint consumption by a person of more than 18 years of age, without payment, shall not be liable to prosecution.”

This provision is actually mandatory.

Passing the joint: Attention teenagers!

Whoever gives hash and weed for simultaneous consumption free of charge (one gives a joint in the round or throws up a piece so that someone builds a joint) is not punishable if it is a minor amount of hash or weed (“minor” is however a matter of interpretation of the court). But this is only true if adults are involved. If juveniles are involved, you are guilty of a misdemeanor! (The consumption of the individuals can be punished as contravention ).

The judges decide

However: what is a “minor amount” or a “minor case” is also left to the judge's discretion. The municipal judge's office of the city of Zurich commented on these two articles on the phone like this: “The respective judge has to decide what counts as a light case. The judges are trained to do this. It is therefore entirely at the judge's discretion what qualifies as a light case. It is never a light case if something is found, or the controlled person admits to being in possession. So (at least in Zurich) an easy case is only assumed if someone is caught smoking a joint, and can credibly show that he/she does not possess any other prohibited substances (felts, possibly house search) and has also been offered the joint for free by an unknown, mysterious third party (who in the meantime had left again). In case of purchase, or even already possession, just these actions would be punished.” Whether this was intended by the legislator at the time, one can doubt.

The hope is unfortunately not fulfilled

Well, it is difficult. But if you have a nice judge, you might be able to get off with immunity or a warning instead of a fine by making a good impression (see also warnings). Anyway: If you testify (better would be silent…), you should testify in this direction: one-time, first-time consumption; smallest amounts; possible passing on to co-smokers free of charge and never to under 18-year-olds. You can also refer to the above two NarcA articles. Actually, they have to prove to you that it is different. Your testimony is the most important evidence.

A solution would be possible

If the judges in our country would interpret these two articles 19 a) 2. and 19 b) a little more loosely and, for example, consider all amounts of hashish and weed under 100 grams as “light cases” or “minor amounts” (which they are), 90 percent of the problems would be easily solved. But that would probably require intensive training of the judges. Until then, these two articles remain provisions that are very rarely applied. Unfortunately.

Last modified: 2022/03/26 16:23

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Legal overview

Shit happens 15 (Summer 2023)

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