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THC use should not be a human right

In an interesting decision, the Federal Supreme Court has laid down all the currently valid principles for dealing with THC consumption. Unfortunately, it does not want to make use of its leeway and adheres to a restrictive interpretation of the Narcotics Law.

The case

The Federal Court had to judge a case in which a juvenile had been caught with 3.8 grams of weed. During questioning, he admitted that he consumed between one gram per month and one gram per week. As punishment, the juvenile had received a reprimand.

The prohibition to consume THC products violates the European Convention on Human Rights ECHR, specifically Article 8 (respect for private life) and Article 14 (prohibition of discrimination), the lawyer of the teenager said in his complaint.

In concrete terms, the Federal Court had to decide whether the punishment of THC use was compatible with the ECHR - or not.

In its ruling, the Federal Supreme Court once again summarizes the current legal situation: In principle, the consumption of THC products is punishable. In minor cases, however, a penalty can be waived. But the slight case is something that the judge is completely free to assume - or just practically always not assume. The Federal Court does not want to interfere with the first instance and leaves it a great deal of freedom. However: As soon as it is a “regular” consumption and the person concerned does not show any effort to stop the consumption, a light case is never given. It does not seem to matter how much or little someone consumes.

Then the Federal Court also relativizes the Federal Constitution. It is easy to deduce from this that the consumption of THC products must be free (see the article in Legalize it! 29, pages 14 to 19). But the Federal Court is of the opinion that judges are only bound by the applicable laws. Even if they were to deem a federal law unconstitutional, they could not deviate from it. This opinion now degrades the Federal Constitution, after all the foundation of our state system, to a pile of scrap paper. For what use are the fundamental rights and other articles defined there if they are not supposed to be binding on the federal court?

The assessment of the ECHR

But still: The ECHR is for the federal court just like the federal laws a piece of law to be respected. First of all, it therefore deals with the freedom of private life (Article 8). Specifically, this right means three things:

  • Right of self-determination over the body
  • Privacy protection
  • Free design of the way of life

At most, the Federal Court sees the freedom to shape one's lifestyle as being threatened. But this does not mean a general freedom of action, but only a freedom of action reduced to the essential points.

THC use - (in)important?

Now follows the essential conclusion of the Federal Court: it finds it difficult to see the consumption of narcotics as an elementary manifestation of the development of personality.

Our federal court probably needs some tutoring here. The consumption of mind-altering substances is obviously an essential part of being human: THC products have been consumed for thousands of years, either as a remedy or as a stimulant. These products are very proven as a remedy for many ailments and equally proven as a means to make one's life more colorful and enjoyable. Here also the right of self-determination over the body would come into play (an element that was not discussed at all by the Federal Court). Because how my body is, that has to do very directly with the intake of psychoactive substances!

But for the Federal Court the consumption of THC products is just nothing really important - therefore it is not protected by the ECHR. Thus, it is of no use to refer to the prohibition of discrimination (Article 14): This prohibits discrimination only with regard to the really important human rights. And for the Federal Court, this does not include the consumption of hash or weed. Therefore, the reference to the unequal treatment of alcohol and THC is of no use: It is just nothing important, and that's that. Finally, the Federal Court points out that it is not a legal decision whether THC may be consumed or not. It is exclusively a political decision.

Such an attitude is extremely despondent. THC consumption is a private matter. Just like religious beliefs or sexual orientation, it must be the sole decision of the individual. It is therefore a private matter in which neither the legislator (nor a majority of the people), nor the courts have anything to say.

Total ban no, restrictions yes

This does not mean that we want to be allowed to consume THC everywhere and all the time - freedom is of course limited where it interferes with the freedom of others. Thus, a society is allowed to prohibit consumption in public, or to intervene if smoke is a nuisance to others. We consider that to be perfectly permissible. But those who consume at home or in (private) places where THC-users meet and do not bother anyone: This area must be protected as a private sphere. This is only of concern to those affected, and no one else.

Unfortunately, the Federal Court does not share this opinion. If it did, however, the current narcotics law could be interpreted without difficulty in such a way that personal handling of THC products would be considered exempt from punishment. The legal terms “minor case” and “minor quantity” would be the key.

Last modified: 2023/12/22 21:16

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Shit happens 15 (Summer 2023)

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