The Federal Court has already confirmed several times that possession of less than 10 grams of cannabis does not constitute a criminal offense.[1] It was previously unclear whether the cannabis could be confiscated by court. This question was clarified by the Federal Court on June 19, 2023.
What happened?
In 2019, the border guard corps stopped a man at St. Margrethen train station who was carrying 2.7 grams of marijuana and 0.6 grams of hashish. The Rheintal district court acquitted him of the charge of violating the Narcotics Act (BetmG). However, it ordered the confiscation and destruction of the confiscated cannabis. The St. Gallen cantonal court confirmed the decision. The man defended himself against this in the Federal Court and won his case. Anyone who prepares a small amount of cannabis for their own consumption is not punishable under Article 19b Paragraph 1 of the Narcotics Act. According to case law, these non-punishable preparatory acts include acquisition and possession. These preparatory acts for consumption are legal, which is why the person concerned does not commit an offense. In its 2011 report on the introduction of the administrative fine procedure for cannabis consumption, the National Council's Social Security and Health Commission stated that only the cannabis product that is being consumed can be confiscated. However, a small amount that the offender is only carrying with him or herself cannot be confiscated. The Federal Supreme Court has now confirmed this view of the Commission in its latest decision 6B_911/2021 judgment of June 19, 2023.
A small amount of cannabis (up to 10 grams) intended for personal consumption may not be confiscated for destruction by the police or the courts. The ordered DNA sampling was deemed unlawful. However, the man must pay CHF 500 in legal costs and according to the verdict, his filter tips were confiscated for destruction.
What does this ruling mean?
The ruling is a clear statement by the Federal Court against the unnecessary penalization of cannabis consumers. In this case, the Federal Court dealt exclusively with the technical aspects of the confiscation of small amounts of cannabis. The unauthorized consumption of cannabis remains a criminal offense after this ruling. The ruling is an important piece of the puzzle in the process of decriminalizing cannabis. Various questions arise regarding the impact of the ruling.
1. Has the cultivation and import of small amounts of cannabis been legalised by the ruling?
According to Hug-Beeli, the preparation of a small amount of less than 10 grams per week includes cultivation, manufacture, otherwise producing, storing, possessing, acquiring, transporting, importing, exporting and carrying and other variants of the act.[2] The cultivation and import of small quantities (up to 10 grams) of cannabis is, under this aspect, prohibited under Swiss law. moglicherweise to be considered legal. There is still no consensus on this issue no case law.
2. When can the public prosecutors and courts consider a minor case of cannabis consumption pursuant to Article 19a paragraph 2 of the Narcotics Act, which would mean immunity from prosecution for the consumer?
Unfortunately, this question remains unanswered. For adults with moderate and socially inconspicuous consumption, punishment for consumption is not considered appropriate. In general, the consumption of cannabis should be exempt from punishment.
We are interested in your opinion. Let us know what conclusions you draw from the ruling and what it means for cannabis enthusiasts in Switzerland.
https://www.bger.ch/files/live/sites/bger/files/pdf/de/6b_0911_2021_2023_07_24_T_d_07_59_04.pdf
[1] 6B_1273/2016 Judgment of 6 September 2017.
[2] Hug-Beeli, Narcotics Act (BetmG), Commentary on the Federal Act on Narcotics and Psychotropic Substances of October 3, 1951, 2016, Art. 19b N 41.