Chapter 20 - Public Policy In Other Countries - Switzerland

A bill to decriminalize cannabis[1][158]

The Swiss Federal Council recently submitted a major bill to Parliament, the cantons and the public for a fundamental revision of the Narcotics Act. That bill, which is set to go through the various stages of canton and national consultation, is based on the observation, similar to our own findings, that:

 

 (…) with regard to cannabis, the gap is too great between the actual situation, the statutory provisions and their implementation. As the Federal Commission on Drug Issues states in its report on cannabis, the prohibitionist system does not prevent cannabis use and cannabis users no longer tend to consider themselves drug users. The risks that cannabis represents for public health must be assessed differently from the way the legislator did it in 1975.

At the time, cannabis was considered a gateway drug. It was felt that the pharmacological properties of cannabis led young cannabis users to opiate or amphetamine use. That view was refuted with the 1989 report of the Sub-commission of the Federal Commission on Narcotics.

The most recent research supports current findings that the effects of cannabis are less hazardous to health than the effects of alcoholism or tobacco abuse. (…)

(…)

The number of users of cannabis derivatives has increased. In 1992, according to the Swiss Health Survey of the Federal Statistics Office, 16.3 per cent of young Swiss citizens aged 15 to 35 said they had previously used hash at least once in their lives. In 1997, 26.7 per cent gave the same answer. All OECD countries have observed the same trend. In the United States, for example, the life prevalence of cannabis use in individuals 18 years of age increased from 32.6 per cent in 1992 to 49.6 per cent in 1997. [2][159]

 

The cannabis revision bill is also based on the observation, in which we wholeheartedly concur, that "the available scientific literature establishes no relationship between severity of legislation and life prevalence of cannabis use."[3][160] It further emphasizes that:

 

The weaknesses of the present act are apparent when it comes to fighting the cultivation of hemp used to produce narcotics and the production and sale of cannabis-based products. Enforcing the act in this area is a highly heterogeneous and costly enterprise; the result is a large market that is very difficult to control and has expanded beyond our borders. Moreover, the need to revise statutory provisions in this area is virtually undisputed. [4][161]

 

The purpose of the revision of the act is thus, in particular, to:

··        adapt the Act to the actual situation;

··        decriminalize cannabis use and acts leading thereto;

··        reinforce youth protection;

··        regulate the cultivation, manufacture and trafficking of cannabis;

··        restrict the obligation to prosecute;

··        reinforce repression in certain areas in a targeted manner.[5][162]

 

More specifically, the bill would provide (art. 19c) for the decriminalization of the use of cannabis-related products. In addition, preparatory acts to personal use of cannabis-related products would be decriminalized if committed without affording a third party the opportunity to use drugs. While the bill does not set out specific limits on quantity–as it would be left to the courts to determine whether it was related to personal consumption - the government publication explaining the bill mentions that as a principle, it does related to personal consumption if the quantity does not exceed what is needed for weekly use. In general, this would mean quantities of 30 grams for possession and 10 average-size plants for cultivation. The publication states that these quantities would vary depending on the person, the way it is consumed, etc.[6][163]

Article 19d would confer on the Federal Council the power – and not the obligation – to determine priorities in criminal prosecutions. Under this power, the Federal Council could, after consultations with the cantons, set out the conditions under which the prosecution and criminalization of certain offences would be waived, if they are conducted under the legal framework discussed in the next paragraph.[7][164]

If the Federal Council uses its power under article 19d, article 19f sets out conditions under which the cultivation, production and distribution of cannabis and its derivatives would be allowed. Distribution would not be prosecuted under certain conditions: selling to persons under 18 years of age would not be permitted; the product must not represent a significant risk to health; public order must not be disturbed, advertising would be prohibited, etc. Producers must also submit to a set of strict rules: they may produce solely for point of sale located in Switzerland, notify authorities regarding all crops (species, cultivation area, location, etc.), and specify THC levels. The Federal Council can establish a series of rules such as size and lay out of cultivation areas, the number of distribution centres, etc. In addition, cantons would be able to set out more restrictive rules, particularly with respect to cultivated areas and distribution centres.[8][165] 

The Council did request legal opinions on whether its proposals satisfied the three international conventions.[9][166] The two opinions concurred that the decriminilization of personal use and related acts would not contravene international conventions. In addition, the waiver of prosecution (or limitation of criminal prosecution) for cultivation, production and distribution would also be consistent with the three conventions. The Federal Council concludes in its Message that:

 

In their essential points, the two legal opinions come to the same conclusions. The only difference is in the matter of whether, in cases where a waiver of criminal prosecution in matters pertaining to the cultivation of cannabis and the manufacture and distribution of cannabis products would be introduced, the provisions are sufficient or whether they should be supplemented by a licensing system.

It should be noted on this point that the Netherlands also has a partial limitation on the obligation to prosecute in the areas referred to and that it has not introduced a licensing system. Nevertheless, the principle of the Dutch system has never been disputed as being inconsistent with the UN conventions.[10][167]