2. Cannabis in Switzerland: The current situation
2.6.1 International conventions
A significant factor in the policy debate over cannabis – as is also true in the case of other substances classified as narcotic drugs – is the fact that the scope for national legislation is curtailed to some extent by obligations entered into under various international agreements (for a complete and exhaustive account of international drug law see Rausch 1991: page 107 to 136). Several conventions have been drawn up in order to regulate the abuse and trafficking of illegal substances. These international conventions have been ratified by numerous countries and to some extent shape their national legislation directly. Among the matters covered by these conventions is cannabis consumption. A milestone in the development of international drugs law was the Single Convention on Narcotic Drugs of 1961. This laid down rules of international application and largely superseded a number of existing conventions, agreements and protocols which were incomplete in their coverage. To this day the Single Convention forms the cornerstone of most countries’ national drugs legislation. It requires ratifying States to promulgate laws giving effect within their territories to the measures recommended in the Convention (HugBeeli 1995: page 146). The Single Convention places cannabis and cannabis resin in the same category as opiates (e. g. heroin), in Schedule IV. It classifies substances hierarchically according to their medical utility and carries on a distinction between the useful substances of the West (medicines) and traditional substances of the Orient having no therapeutic value (Richard 1995: page 18). However, with the emergence of new, chemically manufactured substances in the seventies the Single Convention soon began to appear outdated. As a consequence, a new international agreement was adopted to cover these new synthetic products. This was the Convention on Psychotropic Substances of 1971, also known as the Vienna Convention. It places synthetic products in the category of 'psychotropic substances’ (psychopharmaceuticals, barbiturates, LSD). The Convention permits their use in medicine but otherwise prohibits consumption. 1 The main active constituent of cannabis (delta- 9tetrahydrocannabinol) is included among the stimulants (e. g. amphetamine) in Table II (psychotropic substances), which means it is subject to the same level of controls as narcotic drugs under the Single Convention. The residual mix of active ingredients in cannabis, on the other hand, is included in Table I under hallucinogens, which may be used solely for scientific and – to a limited degree – medicinal purposes under individual licenses issued by the authorities. In 1972 there followed the Protocol Amending the Single Convention, which defines the functions of the International Narcotics Control Board. This body works in cooperation with governments to ensure that only such quantities of narcotic drugs are cultivated, produced or used as are necessary for medicinal and scientific purposes (Hug- Beeli 1995: page 147). The most recent convention is the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 2 of 1988, which further extends the scope of international drugs law. Unlike the Single Convention and the Vienna Convention, 3 this convention expressly requires signatory countries to prohibit the activities preparatory to personal consumption. It does not require the actual consumption of illegal substances to be made an offence, only their possession and procurement (Hug- Beeli 1995: page 148). The Convention permits these substances to be used in medicine but otherwise prohibits all consumption.
2.6.2 The Federal Narcotics and Psychotropic Substances Act (BetmG; SR 812.121)
The Federal Narcotics and Psychotropic Substances Act (BetmG) of 1951, as amended in 1974, regulates the production, distribution, purchase and use of narcotic drugs and psychotropic substances which are subject to State controls. Within the meaning of the law, narcotic drugs include addictive substances and compounds of the cannabinoid type (Article 1( 1) BetmG). By way of example, in the second paragraph of the same Article, hemp is specified as a raw material of narcotic drugs. The resin of the glandular hair of the hemp plant (known as 'hashish’) is also listed as an active constituent of cannabis. Under Article 8( 1) BetmG, neither hemp plants used for the purpose of producing narcotic drugs nor hashish may be cultivated, imported, produced or placed on the market. Hemp may be freely cultivated for other purposes, however, without any special permit being required. Article 4 BetmG, which provides that a permit is required for the production of narcotic substances, does not apply in the case of hemp. 5 . Under Article 1( 2) c and d BetmG, narcotic substances also include 'other substances’ having a similar effect to hemp or the resin of its glandular hair and 'preparations’ containing any of the 'substances’ already mentioned. Hemp products are thus by definition narcotic substances. Whether Article 8( 1) d BetmG actually extends the criterion of narcotics production to hemp products ['the following narcotic substances may not be cultivated, imported, produced or placed on the market: d) hemp for the purpose of narcotics production or the resin of its glandular hair (hashish) ’] is an open question, which has not yet been definitively resolved by the courts. The current position therefore appears to be that the production and supply of cannabis products such as cannabis oil etc. are not subject to any restriction whatsoever under the drugs legislation unless the motive is the production of narcotic drugs (see Annex d to the Order of the Federal Office for Public Health on Narcotic Drugs and Psychotropic Substances, BetmV- BAG, SR 812.121.1). Under the first subparagraph of Article 19( 1) BetmG it is a criminal offence to cultivate hemp without authorization, where it is done for the purpose of producing narcotic drugs. Otherwise, the penal provisions of the BetmG draw no distinction between cannabis and the other narcotic drugs and make both illicit trafficking and consumption an offence. Since the decision of the Swiss Federal Supreme Court of 29 August 1991, 6 the legal position is that, according to the present state of knowledge, cannabis, even in large quantities, 'cannot endanger the health of many individuals’ within the meaning of Article 19( 2) a BetmG. Any offence contrary to the first subparagraph of Article 19( 1) BetmG, which concerns cannabis, cannot therefore be treated as 'a serious case’ within the meaning of Article 19( 2) a BetmG. Trafficking in cannabis products, unlike other drugs such as LSD, heroin or cocaine, is thus capable of being treated as a 'serious case’ (carrying a minimum sentence upon conviction of one year’s imprisonment) only if it is organized by a gang or carried on as a business. The consumption of hashish, however, will not automatically be treated as a 'minor case’ in accordance with Article 19a( 2) BetmG. It cannot be treated as such in the case of somebody who is a regular user of hashish and has no intention of changing this behavior. 7 For minor offences of cannabis trafficking and consumption the approach varies from canton to canton. 8 The courts have been tending to take a more lenient approach to sentencing for offences of personal consumption. In some cantons there are even places (meeting points, small venues) where cannabis is freely consumed or sold in small quantities. Ten of the 26 cantons also confirm that their police forces adopt a different approach to drug law enforcement where cannabis is concerned, as opposed to other illegal substances, and tend to turn a blind eye to consumption offences (see Fahrenkrug et al 1995: page 143). According to the results of special surveys carried out by the Swiss Federal Statistical Office 9 of court decisions 10 in drugs cases in the years 1991 and 1994, cannabis products were the substances most frequently involved in convictions for drug use, especially where the person before the court was a minor (in 95 percent (1991) and 91 percent (1994) of cases where a minor was convicted on a drugs charge). These rates fall to 65 percent and 51 percent in the case of adults. In cases where no criminal conviction is entered in the records, the most common court orders against persons convicted of mere consumption of cannabis are fines, followed by censures or cautions.
2.6.3 The Swiss Road Traffic Act
An aspect of cannabis consumption which merits special attention is the scientific debate over the issue of driving under the influence of psychotropic substances. Here again there are divergent views. There are studies which show cannabis to cause negative effects on driving performance (reduction of capacity to adapt during difficult maneuvers (cited in Bühringer et al 1993: page 9). Other studies have failed to detect any significant effect on motor functions and reaction time (cited in Hug- Beeli 1995: page 556). It is true overall that both the excessive consumption of alcohol or other psychotropic substances and their consumption in combination can impair driving performance. An Australian report by Hall et al (1992: page vii) found that drivers with THC in the blood drove more cautiously and had a lower propensity to take risks than drivers with alcohol in the blood. In studies on accident victims, however, the presence of THC in the blood was detected in up to 37 percent of cases, mostly in combination with an elevated alcohol level. Are cannabis users therefore more likely to be involved in accidents? The above figures do not provide an answer since, for one thing, the presence of THC in the blood indicates only that cannabis was recently consumed and not a cannabis- induced state of inebriation and, furthermore, the confounding effect of alcohol (in over 75 percent of the cases covered) makes it difficult to give a conclusive interpretation to the results 11 . To be on the safe side, a limit could be imposed on cannabis consumption by drivers, but such a provision would be difficult to put into practice. First, it is not possible to determine a cut- off point above which cannabis consumption makes driving dangerous. Secondly, there is no direct correlation between THC content in the blood and driving performance ( in contrast to the alcohol level of the blood). These difficulties are reflected in the Road Traffic Act. In Switzerland, 'driving in a state of drunkenness’, for example, is a misdemeanor under Article 91( 1) of the Act, whereas being unfit to drive due to consumption of drugs is merely an infraction, under Article 90( 1), unless it is accompanied by a serious traffic violation within the meaning of Article 90( 2) (Hug- Beeli 1995: page 561f). However, the law does provide for the punishment of a person found driving under the influence of illicit substances 12 . Under the current legislation, the court has discretion to deal with a case of driving under the influence of illicit substances after taking into account all the circumstances of the case. 13 In Germany, too, the Cologne Oberlandesgericht (Higher Regional Court), in a decision given on 24 August 1990, has recognized that there is still insufficient empirical data to show exactly the impairment of driving performance that occurs following cannabis consumption (Hug- Beeli 1995: page 565; see also Bühringer et al 1993: page 9). The Road Traffic Act is currently in the process of being amended. In order to improve road safety, the proposed amendments are intended to enable more effective action to be taken against those who drive in an unfit condition. In the consultation process on the draft amendment, a unanimous welcome was given to the proposed creation of a federal power to take blood and urine samples from a driver suspected of being under the influence of narcotics or medication. It is also proposed to give the Federal Council powers to introduce a zero- limit for certain substances – narcotic drugs and/ or medicines – deemed to have been proven to cause unfitness to drive. In the case of all other substances, an allegation of unfitness to drive would have to be proved in each specific instance. In relation to this proposal, the question will again arise as to which category of substances cannabis falls into. The Federal Office for Roads, in its submission on the proposed legislation, expresses the view that cannabis can impair driving performance for a period of approximately eight hours following consumption. It has not been conclusively established to what extent cannabis consumption can result in flash- backs i. e. episodes of phantom inebriation following drugfree intervals (BGE 124 II 566).
2.6.4 Agricultural and private cultivation
2.6.4.1 Hemp in agriculture
Under the sustainable resources trial being conducted by the Federal Office of Agriculture, the Federal Government provides subsidies for the cultivation of low- THC hemp (THC content of less than 0.3 percent) for industrial use. Hemp cultivation for the production of edible oils, etc., is not eligible for subsidy since sustainable resources, as defined, may not be used as foodstuffs for humans or animals (Article 6a( 2) of the Ordinance on Production Control in Crop Farming). A list of saleable varieties of hemp seed in the agricultural sector was brought into effect in Switzerland on 1 March 1998. 14 Delivery notes and certificates are used to monitor hemp seed transactions and the Federal Office of Agriculture carries out tests to determine THC content. Anybody growing hemp with a THC content in excess of 0.3 percent is liable to investigation and prosecution. These provisions do not apply directly to hemp grown for non- agricultural purposes (e. g. as an ornamental plant or house- plant).
2.6.4.2 Hemp in food, cosmetics and articles of daily use
Hemp blossoms, seeds, volatile oil and other plant parts are currently used in food and cosmetics production. Latterly, a variety of products such as hemp oil, hemp biscuits, hemp pasta and hemp- blossom- flavored beer have appeared on the market. By law, foodstuffs may not produce any pharmacological effect. With the amendment of the Ordinance on Foreign Substances and Ingredients in Food Products
(FIV) on 30 January 1998, maximum limits were introduced for the THC content in various foodstuffs. For example, hemp seed oils containing more than 50mg/ kg no longer constitute foodstuffs within the meaning of Article 3 of the Food Act. The FIV amendment came into effect on 15 February 1998. There are no equivalent regulations in the product categories of cosmetics and articles of daily use.
2.6.4.3 Hemp in medicine
At both national and international level there is keen interest in the medical use of the hemp plant or its extracts (see section 2.5). The use of narcotic drugs for medicinal purposes is regulated by the
BetmG. That Act prohibits the production, supply, possession and consumption of narcotic drugs for non- medical use, in accordance with Switzerland’s obligations under international conventions. With the enactment of the BetmG in 1951, the existing general prohibition on opium was extended in accordance with the recommendation contained in the International Convention of 19 February 1925 to extend prohibition to hashish, other than where used for therapeutic purposes. 15 In the eyes of the legislature of the time, the medical utility of cannabis was regarded as at best marginal. Today, only scientific research into cannabis
i. e. into its psychoactive constituents, is allowed, subject to authorization being obtained from the Swiss Federal Office of Public Health in accordance with Article 8( 5)
BetmG. However, Article 8( 5) BetmG makes no provision for the authorization of cannabis for medical use, not even for limited medical use, as in the case of heroin or hallucinogens. Thus hemp products whose active constituents produce psychotropic effects cannot at present be used for medical purposes in Switzerland. Plant extracts such as hemp tinctures or hemp extracts or other compounds are no longer included in the current lists of the Intercantonal Office for the Control of Drugs
(IKS). The position is somewhat different in the case of individual active constituents: under the current legislation they may be used in clinical studies and for limited medical applications – but subject to stringent conditions. Article 8( 5) BetmG permits the use of THC in the treatment of a small number of serious cases of
spasticity, which are not treatable with other medicines (severe spasmodic contractions in paraplegics or tetraplegics or in multiple sclerosis patients).
2.6.4.4 Hemp as a "dual- use crop"
Hemp has become a dual- use crop, i. e. it may be both consumed as an illicit narcotic drug (marijuana, hashish) and used legally in agriculture as a renewable resource for the textiles, oil, paper, rope and building industries, or for the production of foodstuffs and articles of daily use, or as a medicine. This duality of lawful and unlawful uses poses major difficulties for the authorities in policing hemp cultivation and the sale of its various products 16 . From the perspective of the law enforcement agencies the problem lies in the fact that all varieties of hemp may lawfully be grown provided they are not grown for the purpose of producing narcotic drugs, with the onus of proving such intention lying on the prosecution authorities. Similarly, in the case of the sale of hemp products it is incumbent on the prosecution authorities to adduce proof that the products in question are prohibited substances having a psychoactive effect and that the seller has offered the products for sale in that knowledge. It is virtually impossible for the prosecution authorities to discharge this burden of proof any more, particularly in relation to the growing export trade for hemp products, as the final processing and use of the products takes place abroad. According to police figures, Switzerland is increasingly an exporter of hemp for use as a drug 17 (see also section 2.2.2)
1 According to Richard (1995, page 19), psychotropic substances as defined under this Convention include all products capable of causing addiction, which affect the central nervous system by either stimulating or depressing it or by causing hallucinations and which, most importantly, engender misuse to the detriment of society and public health. Also, legal psychotropic substances (alcohol and tobacco) are not included in the category.
2 This convention has yet to be ratified by the majority of the signatory states. In Switzerland, the issue of ratification is to be debated after the referendum on the ‘Droleg initiative’ has been held.
3 Article 36( 1) of the Single Convention only requires the criminalization of illegal possession in connection with dealing while the Vienna Convention is also directed against illicit trafficking rather than against the unlawful consumption of psychotropic substances (see notice and draft resolution of 29 November 1995 on the 1988 Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances (BBl 1996 I, 619).
4. The difficulty of distinguishing between possession and consumption is briefly discussed below with reference to the case of the United Kingdom. Suffice for now to observe that the question as to whether possession or consumption is involved is often left to the discretion of the prosecution authorities.
5 See the Report of the Swiss Federal Office of Justice of 21 January 1994; the same conclusion is reached by Seiler in the Legal Opinion on Hemp Cultivation, page 14, 13 January 1998. 6
6 BGE 117 IV 314ff.
7 BGE 124 IV 44ff.
8 Hug- Beeli 1995: page 181: 'in Zurich the following practice has become established over recent years: a first- time hashish user receives a fine of between SFR 50 and SFR 300 – SFR 100 is the norm – depending on his financial circumstances. In the case of a repeat conviction for regular use the fine is increased accordingly, but does not exceed SFR 500. Notorious users may be fined between SFR 500 and SFR 1000 and in exceptional cases may even receive a custodial sentence. 'Weekend use’, as it is called, which means taking cannabis no more than once a week, and consumption on a purely occasional basis, at parties etc. are either not punished at all or attract merely a caution.
9 Drugs and the Criminal Law in Switzerland, results of two surveys, 1991 and 1994, Swiss Federal Statistical Office, Berne 1997; page 25f.
10 Only the decisions not entered in the criminal record give details as to the type of drugs used (1991: 62 percent and 1994: 78 percent of convictions for drug use). These findings therefore relate to these decisions and do not provide an overall picture of the various drugs dealt in or consumed by those convicted.
11 In addition, comparative figures on the incidence of cannabis in the blood of non- accident victims are lacking. It is therefore not possible to establish whether cannabis users are proportionately over- represented among accident victims.
12 Under Article 31( 2) of the Road Traffic Act, a driver who is not fit to drive is guilty of an offence under Article 90( 1) in a minor case and under Article 90( 2) in a serious case.
13 See Bill of the Federal Council to the Federal Assembly on the Amendment of the Swiss Road Traffic Act of 14 November 1973, in Hug- Beeli 1995: page 563.
14 Ordinance on the Production and Marketing of Seeds and Plants. Amendments of 25 February 1998 and Ordinance of the Federal Office of Agriculture on the Varieties Catalog for Hemp, 26 February 1998.
15 BBl 1951 I 843
16 See the Evaluation Report of July 1998 issued by the Central Office for Criminal Police Matters on the survey of cantonal prosecution authorities concerning the question of hemp cultivation, hemp products and their sale and the introduction of an aurhorization requirement for the cultivation of hemp.
17 See Half- yearly Report No 1/ 98 of the Federal Office for Police Matters/ Central Office for Criminal Police Matters: Drugs, Counterfeit Money Richard D. (1995). Les Drogues, Paris: Flammarion
Literature
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Fahrenkrug H, Rehm J et al (Hg.) (1995): Drogues illégales en Suisse 1990- 1993, Zurich: Seismo.
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Hug- Beeli G. (1995). Handbuch der Drogenpolitik, Berne: Haupt.
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