Development minor quantity

Minor quantity

Overview summer 2015: There are now (at least) three variants in dealing with the minor quantity

If someone is caught with less than ten grams of cannabis (without consumption), there are very different procedures in the cantons. The law and the explanations clearly state that carrying a small amount (just the ten grams) is exempt from punishment. The cantons implement this provision, which we have called “quasi-legal” in our Shit happens 9, in at least three different ways:

  1. Zurich completely ignores the legal requirements and gives a fixed penalty for this, even though this is excluded by law.
  2. Berne and other cantons report and fine those involved in the standard way (as has been the case so far - and anyone who admits to even one consumption in the past in the protocol can certainly be fined for it).
  3. So far, Baselland seems to work the cleanest, as the BaZ reported: Who is reported by the police for the mere possession of ten grams, receives from the public prosecutor a non-acceptance order (because the reported “facts” is obviously not punishable), but with costs of 100 francs.

Unfortunately, no canton has yet understood what the law says: The mere possession of up to ten grams for personal use is exempt from punishment, no report is required.

Overview summer 2014: The penalty-free minor quantity is handled differently

If someone is caught with less than 10 grams without consuming, there now seem to be two variants of repression. Schwyz, Bern and Basel initiate a normal procedure, as we feared in our Shit happens 9 and above. Zurich and probably also Aargau completely ignore the impunity of the minor amount and also issue an fixed penalty although this is excluded by law.

Addition October 2014 In Basellandschaft, on the other hand, one is reported, but the public prosecutor issues in these cases (possession less than 10 grams, no consumption) a non-handling order, which costs 100 francs. This would be the third interpretation. This interpretation is also obviously wrong: The mere possession of less than 10 grams of cannabis is simply unpunishable, which means that you cannot be fined and the piece cannot be confiscated. This interpretation, the most obvious one, has not yet been adopted by any canton. We are looking forward to the first court decisions!

So far, however, no case has reached the courts. Only then will we know how the courts will deal with the penalty-free small amount of 10 grams.

So, as feared, the various police forces are not sticking to a common approach. We cannot yet say whether these are all interpretations or whether other cantons have introduced further variants. Here we are dependent on further cases, fixed penalties, summary penalty orders or best service orders of the police forces.

The small amount and the fixed penalty in practice

Fixed penalties for cannabis use has been possible throughout Switzerland since October 2013. However, the cantons still had to implement the new provisions. Finally, the police forces had to apply the law. How do they interpret the amended NarcA in everyday life?

Implementation takes time

We cannot yet provide a complete overview of the situation in all cantons. We have documented too few cases for that so far. But it is clear that fixed penalties are being distributed, even though some cantons only started doing so on January 1, 2014. However, there are still referrals for acts that could be punished with a fixed penalty… The picture is not clear yet.

The content in short

We assume that there are currently the following levels of illegality:

  • quasi-legal possession up to 10 grams, without consumption ⇒ no punishment
  • little illegal consumption in front of police eyes and possession up to 10 grams ⇒ fixed penalty 100 francs
  • normal illegal consumption and possession for personal use ⇒ report, fines and fees between 100 and 1000 francs
  • highly illegal transfer and sale ⇒ report, fine/imprisonment, fine, entry in criminal record

The legal text is ultimately only relevant to a limited extent. What is central is how the police proceed in concrete cases (and, in a second step, how the courts judge the cases, if they are called upon at all). We were curious to see how the implementation would go. Above all, the fact that the mere possession of a small amount (10 grams) of cannabis is not punishable, would not please the investigating authorities at all, that was our thesis. And this exemption from punishment only applies to the preparatory acts up to consumption. We would have thought (and written so in Shit happens 9) that the police in this case would question those picked up with a few grams and could thus determine further consumption (which is always illegal) - and then they could have reported them for these acts (a fixed penalty seemed to us not possible for this, since this may be issued only for police-observed consumption).

The first cases

It was astonishing when the first cases were reported from Zurich and Winterthur: There were people who were just mixing and still received a fixed penalty. Or people who had only a few grams on them without consuming and also received a fixed penalty without further clarification (interrogation, protocol). So, at least in Zurich, the police seemed to ignore the impunity of the minor amount. They had done this before, but now the 10 grams were really defined (before there was no specific amount). It is a mandatory provision that this is exempt from punishment.

The service order of the Cantonal Police Zurich

The solution was found when a copy of the service order of the KaPo Zurich turned up. It is only a copy of the text, without letterhead/details. But we consider the document to be genuine, it matches the real observed cases and can explain the police action.

In this service order, which is binding for the police, the following possibilities are given under the title “Case constellations with adults”:

  • Observed consumption without possession ⇒ fixed penalty
  • Observed consumption with possession up to 10 grams ⇒ fixed penalty
  • Observed consumption and possession over 10 grams ⇒ report in due process. (If possession for personal use, then report to the criminal authority; if possession for transfer, then report to the public prosecutor.)
  • Possession up to 10 grams of cannabis NOT for personal consumption ⇒ Report to the public prosecutor
  • Possession up to 10 grams for own consumption ⇒ fixed penalty

Comparison with our interpretation

All points agree with our interpretation, only the last point, which seems to us to be incorrectly implemented. The mere possession of up to 10 grams is simply exempt from punishment. The reasons:

  • fixed penalties cannot be issued for possession, only for observed consumption.
  • Therefore, the legislature had to make a small amount of possession exempt from punishment, otherwise most of the people involved would have always continued to be reported for possession.
  • fixed penalties can only be issued for a single illegal act. If now the possession of up to 10 grams would already be an illegal act, then no fixed penalties could be issued at all if consumption and possession come together. Only fixed penalties could be issued for sole consumption without possession. Because, “The fixed penalty procedure can only be applied if cannabis consumption is the only offense to be punished.” This is stated in the report of the Commission for Social Security and Health of the National Council of September 2, 2011 on page 8209.
  • Our interpretation is supported by the text of the law, by the logic of the fixed penalty bill and by the explanatory notes to the law: “Only the cannabis product that is actually consumed at the moment when cannabis consumption is established can be confiscated.” And, “A minor amount of cannabis that the offender is only carrying cannot be confiscated, as the possession of minor amounts of a narcotic drug … shall be exempt from punishment.” Both quotes can be found on page 8210 of the same report(Report of the Commission for Social Security and Health of the National Council of 2.9.2011).
  • The Federal Commission on Narcotic Drugs also writes in its latest report (Current Regulatory Models, January 10, 2014, page 4): “… the prohibition on consumption does not apply without restriction: It is not a punishable offense at all for anyone who prepares only a minor quantity of a narcotic for his own consumption or gives it free of charge to a person of more than 18 years of age to enable simultaneous and joint consumption. In all other minor cases of consumption of narcotics or of contraventions to consumption (purchase, possession, etc.), a penalty may be waived or the proceedings may be discontinued. The latest amendment to NarcA also allows the punishment of users in a simplified fixed penalty procedure.”

Well, fixed penalties are distributed, but the basic relativizations of punishability have simply not reached the repressive organs, even though the Commission seems to think they are applied….

The law has a flaw?

The whole law may be illogical, but when you take it apart, it becomes clear what it is all about. There were others who independently came to the same conclusion as we did and were then surprised that the police took their piece away from them and they received a fixed penalty - without consuming, just because they had a few grams on them. Some also protested to the police, who reacted very harshly, saying that they didn't need to be told about the law. One of them got carried away and said what the authorities must be thinking: “This is a mistake in the law. We have made an agreement to fix it.” Crass words for a police officer. Well, he has nothing else to say, he just has to carry out his orders, even if they obviously violate the law.

What would a court of law say?

Now it would be very exciting to see what the courts, especially the Federal Court, think about these interpretations. But who wants to fight their way through the legal jungle because of a fixed penalty of 100 francs? In principle, one would have to be acquitted, but even so: If only some other consumption can be proven after all, one remains convicted and the costs increase rapidly. Not to mention all the time and nerves. But eventually someone will challenge this approach - it is simply too absurd an interpretation. This interpretation is defended in various ways: The purchase, for example, is not covered by the paragraph (it only covers mixing), so the purchase is punished. (Pointless argumentation: Because then the whole logic would be gone, one could never give fixed penalties, since there would be two illegal actions: Consumption and purchase). Or the (future) consumption would be punished. (Pointless argumentation: The preparation of the consumption is not punishable, the future consumption has not yet taken place and has not been observed, so there can be no fixed penalty ).

The positive

But one can also see it positively: The order of the KaPo Zurich violates the law, but it forces the police to give a fixed penalty in case of possession up to 10 grams - and not to take up further investigations, to question the persons concerned and to try to lure further illegal acts out of them in an interrogation, in order to be able to report them and punish them after all. In any case, we would have believed the authorities to be capable of such an approach, because they want to punish everything, as they prove every day. Compared to our fears, the fixed penalty is more pleasant and cheaper.

The law is the mistake!

However, the authorities could have done it differently: If someone consumes in public, then they just give him or her a fixed penalty. However, if someone is only transporting up to 10 grams during a check, the little bit of weed or hash is left for him or her and he or she is let go. Consumption in private could be considered as a light case, a punishment would be refrained from, as well as the cultivation at home on a small scale and possession for personal use. All this would be possible with the VALID law, but the authorities do not want it. They never tried to apply the quite existing relativizations of illegality. This is now again clearly expressed in the new Zurich service order. Therefore, one can turn and turn it as one wants: The law is the mistake! The fundamental prohibition must go. This playground of repression must be closed.

A first excerpt

As said, this is for now the service order of the Kapo Zurich. But it seems to have been agreed upon with the authorities responsible for prosecuting contraventions of the canton of Zurich (governor's offices, city magistrates' offices) and thus it probably also applies to the city police forces in the canton of Zurich. From the Aargau it sounds like a similar procedure. However, it is not yet clear to us whether all cantons will follow through with this interpretation or whether there are other variants (or even another canton that does not want to introduce fixed penalties at all). We are always grateful for hints, documents and case descriptions!

The weighing

Oh yes, there is something funny in the service order. One question was how all the police officers on duty were supposed to weigh the 10 grams on the spot. A funny idea that all police officers would walk around with a scale…. But there they have found a simple solution for themselves: “The cannabis (up to 10 g) does not have to be weighed on the spot, the reasonably applied “eye measure” of the police officer applies.” Well, if all evidence is taken like that, by eye measurement…. But if one creates a service order with obviously wrong interpretation of the law, then the eye measure is just also possible.

You have the power

They make it really easy for themselves and do not want to move away from repression one bit. Not where it would be possible according to the law, not even where the law prescribes impunity for them. But they have the power to apply the laws in everyday life according to their interpretation. And they say: PUNISH!

Who is on the road with cannabis, should always be careful.

Other implementation fixed penalties

Bern and Basel interpret differently than Zurich

Above we reported on the service order of the Zurich cantonal police, which interpreted the fixed penalty provisions in a rather unique way. But there also seems to be another implementation, as we suggested: Thus Blick am Abend (15.4.14) reported that in Bern and Basel no fixed penalty is issued for possession of less than 10 grams (without directly observed consumption) (because, after all, there is no punishment…). But, as we suspected in Shit happens 9, one risks a normal report. This interpretation of the provisions on fixed penalties seems to us to be much closer to the text of the law than the Zurich interpretation.

Illegal remains just the same

But here, too, they simply can't let go of punishing: they just conduct a normal procedure, as before. Instead, they could have come to terms with the quasi-legality of mere possession of less than 10 grams and left those concerned in peace. But they don't seem to want to know anything about that. However, we have not yet seen a service order of a corresponding police, there remains room for further clarification: For example, whether a normal procedure is really always carried out.

In any case, nothing now remains of the intended regulation for the whole of Switzerland. The situation is even more different than before!

A first judicial clarification

In September 2015, the District Court of Zurich judged a case involving a minor amount of cannabis and acquitted the person concerned. It took the court 13 pages to really appreciate 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 won't grasp.
Here follows the facsimile of the verdict, which also clarifies that consumption is mandatory for a cannabis fixed penalty. 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
own consumption
Judgment: minor amount, page 5 Judgment: de minimis amount, page 6 Judgment: de minimis amount, page 7
Point 4.9 - General impunity
for possession up to 10 grams of cannabis
Item 4.10 - fixed penalties only
for consumption, not for possession
Cannabis must still be
be confiscated
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
Last modified: 2024/03/27 08:56

Share page: facebook X (Twitter)

Legal overview

Shit happens 15 (Summer 2023)

This overview as PDF