Clarification by the Federal Supreme Court: keep weed and hashish

In July 2023, the Federal Supreme Court published a decision that clarified a legal issue that had been unresolved for some time: anyone who acquires and possesses 10 grams of cannabis for their own use not only remains unpunished, but can also keep this quantity.

The police are therefore not allowed to confiscate this small quantity unless they also observe the consumption. They can then seize the material and issue a fixed penalty (OB) for 100 francs.

At the beginning of 2013, I analyzed the new provisions of NarcA for the 9th edition of our Shit happens, which came into force in October 2013.

The main focus was on the introduction of the OB for cannabis use observed by the police, but also on the concrete grammatical definition of the non-punishable, small amount of cannabis at 10 grams.

Our opinion has always been that possession of a small amount for personal consumption is not a criminal offense under the law, so this behavior cannot be punished.

As the commission that discussed this amendment wrote in its report that such a quantity could not be confiscated as long as it was carried, we agreed with this sensible opinion. After all, this amendment was intended to achieve decriminalization.

In the case of observed consumption, on the other hand, consumption would have been punished with an OB - and then the material could also have been confiscated.

After the introduction of these new regulations, we quickly realized that the criminal authorities had no desire to apply the regulations as we had interpreted them. They also issued OB for simply carrying less than 10 grams and they always confiscated the hash and the weed as well. I remember that really annoyed me. I was particularly annoyed by the punishment for an offense that is exempt from punishment under the law! How could that be possible under the rule of law?

In 2017, the first such case came before the Federal Supreme Court, which found that something that is unpunishable cannot be punished. A truism in a constitutional state! It was only then that the police began to treat it as such (and the number of OBs collapsed completely, see statistics graphs).

However, the material continued to be confiscated. Unfortunately, the Federal Supreme Court did not want to clarify this issue in its 2017 decision.

This was followed in 2019 by a further ruling that this impunity also applies to juveniles. This was actually clear from the outset, but the Zurich Youth Prosecution Office first had to be convinced of this by the Federal Supreme Court.

Now, in July 2023, the Federal Supreme Court has published a decision on whether a small quantity, without observed consumption, may be confiscated. The Federal Supreme Court found clear words for this: No, the police must leave the few grams with the person concerned.

Ten years after these decriminalization steps came into force, it is now finally clear how they are to be understood. Despite all the joy about this decision, it is also saddening how long it took for our assessment to be officially confirmed. In any case, it is a great satisfaction to be confirmed by the Federal Supreme Court after ten years!

The person concerned contacted our legal information service in 2019: He was supposed to pay 1,700 francs for a few grams: a blatant summary penalty order. We then did everything we could to ensure that this case could be taken further: Arranging for a lawyer interested in this topic as well as contacts for a deficit guarantee. We are very pleased that everyone involved stuck with it for over four years and never gave up!

The first question that arises now is: will the many police forces and public prosecutors' offices abide by this Federal Supreme Court ruling? Will customs also comply? We would like to see as many cases as possible and whoever learns something about it: Please let us know. Only if we see as many cases as possible will we be able to assess how this supreme court ruling will be received in the lowlands of the actual criminal prosecution - or not, as the case may be.

There are other areas where it might be worth taking a closer look:

• What does customs do if someone orders seven grams from the USA? Will they let them through?
• Are consumers now allowed to own some hemp seeds if they only want to produce a small amount?
• The Federal Supreme Court has also repeatedly mentioned that the consumption of small quantities should not actually be punished either (even if this is possible and common practice). Shall we try to raise the necessary funds to take such a case to the Federal Court?