Little illegal: consumption detected by the police

Laws

Fixed penalty
Fixed Penalties Act (OBG), SR 314.1, Art. 2: Cantons determine the authority, Art. 3: Offence itself determined, Art. 4: Minimum 18 years of age
Fixed Penalties Ordinance (OBV), SR 314.11, Annex 2/Fine List 2, Chapter VIII, Item 8001: Unauthorized consumption of narcotics of the effect type cannabis (Art. 19a No. 1 NarcA) ⇒ 100 francs. In the PDF (2023) on page 32
Light case
Narcotics Act NarcA, SR 812.121, Article 19a, Paragraph 2, in PDF (2023) on page 19.

Conditions

The fixed penalty can only be issued if the police authority has been authorized by the canton to do so, the police have determined the consumption themselves, less than 10 grams of cannabis are involved, no other crimes have been committed and the person is an adult.

Tips

It is best to never walk around with more than 10 grams. If someone smokes a joint in public and is caught by the police, they should only admit to that joint and refuse to answer questions about further consumption or lie, otherwise due process will kick in.

Penalties

100 francs is the tariff for smoking pot when detected by the police. This amount is valid for the whole of Switzerland. No fees will be charged and in case of repetition there will be no increase. Any material and the joint are usually confiscated and destroyed.

Little illegal: consumption detected by the police

Inaccurate media information

Headlines such as “Wer kifft, zahlt 100 Stutz” (Blick), “100 Franken für Cannabiskonsum” (NZZ), “Busse für Kiffer soll 100 Franken betragen” (Tagi) suggested at the introduction in 2013 that generally only a fixed penalty is to be feared if someone smokes pot. The limit of 10 grams was frequently mentioned, but rarely that this amount is exempt from punishment.

That's when it didn't really become clear what the issue was. It's not about smoking pot in general, that is and remains a contravention, which has to be dealt with in due process (police questioning, protocol, report; then another body issues a fine with fees, in case of repetition this becomes higher, see here).

Only for consumption detected by the police

The provisions on fixed penalties only apply to consumption determined by the police themselves. Specifically, the smoking of a joint in public, possibly on a visible balcony or in the garden. If the police have determined this consumption themselves and do not find more than 10 grams during the search of the smokers (according to the law, these are not punishable, quasi legal), then they can punish this consumption themselves directly with a fixed penalty (OB) of 100 francs.

Limited applicability

However, this only applies to adults (juveniles must still be reported “normally”) and as long as no other illegal acts have been committed.

Thus, the fixed penalties are only relevant for a small part of the possible illegal acts around THC. But if someone falls into this category, then a fixed penalty à 100 francs is still an impertinence, but clearly better than a report with a fine and fees of 200 to 1'000 francs.

Cantonal differences

The canton of Bern did not take advantage of this option to simplify the prosecution of consumers and preferred to continue to prosecute (only 196 fixed penalties in 2017), while the canton of Zurich made active use of this tool (3,053 fixed penalty in the same year). These are stark differences in implementation. Incidentally, a total of 18,146 cannabis fixed penalties were issued throughout Switzerland in 2017 (both for detected consumption and for possession of a minor quantity without consumption).

Collapse of the fixed penalties

After the Federal Court confirmed the impunity of possession of a minor amount, police forces could no longer issue OB for it. Therefore, the number of OB has decreased massively from 2018 (see statistics). 2016 was the peak with 19'766 issued OB, in 2020 it was only 4'013. So tens of thousands were wrongly fined before!

Are there any other suspicious facts?

The police can still decide that in a specific case there is more to it than just the joint and the piece of hash and that further clarifications “must” be made. In this way, such cases can also lead to ordinary proceedings.

Because, as it says in a presentation of the Zurich city police: “The fixed penalty procedure is excluded (…) if at the same time other violations against the NarcA (…) are present, which cannot be punished in the fixed penalty procedure (e.g. continuous consumption).”

One thing is certain: anyone who honestly tells the police about past consumption can and will very well be reported.

Fixed penalty as an optional provision

We cannot recognize a legal claim to punishment with a fixed penalty. However, the opposite is possible; everyone is allowed to say: “No, I don't want a fixed penalty from the police, but to be reported in the normal procedure”. In this way, those affected can also drag the whole thing on through the instances. However, this rarely brings anything, because the costs increase enormously.

The cantons must implement them

Although the provisions on fixed penalties are laid down in the nationwide law and Fixed Penalties Ordinance, the cantons must implement prosecution in concrete terms, which means that cantonal provisions are also required. Only these cantonal decisions authorize certain police bodies to issue fixed penalties. For example, the Valais municipal police did not have this authority for the first few years and thus issued notices as before, while the Valais cantonal police already issued fixed penalty.

In the canton of Bern, only uniformed police officers may issue fixed penalties, while in many other cantons all members of an authorized authority may do so.

And the "easy case"?

In “light cases”, the NarcA allows to stop the procedure or to end it with a warning, i.e. without any penalty. This provision could be applied by the authorities, but unfortunately they do so very rarely.

This would be exactly the right approach: for reasons of the rule of law and on the basis of constitutional personal liberties, the authorities should apply this provision of the NarcA widely. But this has not (yet?) reached the police, the municipal judges' offices, the governors' offices and the public prosecutors' offices!