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It has already been confirmed several times by the Federal Court 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 the courts. This issue was clarified by the Federal Court on June 19, 2023.
Contribution of IG Hemp, July 2023(As a member of IG Hemp, Herba di Berna reproduces here an up-to-date information of the association).
What happened?
In 2019, the Border Guard Corps checked a man at the 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 a violation of the Narcotics Act (BetmG). However, it ordered the confiscation and destruction of the seized cannabis. The Cantonal Court of St. Gallen confirmed the decision. The man defended himself against this in federal court and was proven right. Anyone who prepares a small amount of cannabis for their own consumption is not liable to prosecution under Article 19b(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 is not committing an inducement offense by doing so. In its 2011 report on the introduction of the administrative fine procedure for cannabis use, the National Council’s Commission for Social Security and Health argued that only the cannabis product that was currently being used could be confiscated. However, a small amount that the offender only carries with him or her cannot be confiscated. This view of the Commission has now been confirmed by the Federal Supreme Court 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 by the police and the courts for destruction. The ordered DNA collection was found to be unlawful. However, the man must pay CHF 500 in procedural 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 users. In this case, the Federal Court dealt exclusively with the technical aspects of the confiscability of small amounts of cannabis. Unauthorized use of cannabis remains a criminal offense under this ruling. The ruling is an important piece of the mosaic in the process of decriminalizing cannabis. Various questions arise regarding the impact of the ruling.
1. has the cultivation and importation of small amounts of cannabis been legalized with the ruling?
According to Hug-Beeli, the preparation of a minor quantity of less than 10 grams per week includes both cultivating, manufacturing, otherwise producing, storing, possessing, acquiring, transporting in, out, and carrying out, and other offense variants.[2] The cultivation and importation of minor amounts (up to 10 grams) of cannabis may be considered legal under Swiss law from this perspective. To date, there is no case law on this issue.
2. when can the public prosecutor’s offices and courts assume a minor case of consumption of cannabis pursuant to article 19a paragraph 2 of the Narcotics Act, which would mean exemption from punishment for the user?
Unfortunately, this question is still unresolved. For adults with moderate and socially inconspicuous use, punishment for use is not perceived as appropriate. In general, the use 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 hemp lovers 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 September 6, 2017.
[2] Hug-Beeli, Betäubungsmittelgesetz (BetmG), Kommentar zum Bundesgesetz über die Betäubungsmittel und die psychotropen Stoffe vom 3. Oktober 1951, 2016, Art. 19b N 41.
Author: Tom (IG Hemp)
About IG Hemp IG Hanf is the trade association of the Swiss cannabis industry. It represents its members vis-à-vis politicians, authorities and the public. In doing so, it promotes exchange and cooperation among members, thereby strengthening the cannabis industry in Switzerland. Their mission is to create a regulated cannabis market to ensure Switzerland is at the forefront of the global cannabis industry. IG Hemp sets new standards for its members and the industry. First and foremost with the quality label Swiss Certified Cannabis, which guarantees reliable product and consumer safety. IG Hanf is also a founding member of the Cannabis Consensus Switzerland association, in which organizations and political parties jointly pave the way for an open and responsible approach to cannabis. Further information: www.ighanf.ch | www.swiss-certified-cannabis.ch | www.ighanf.ch/ehrenkodex