2. Cannabis in Switzerland: The current situation
2.7 Enforcement of the existing legislation
As shown above in sections 2.2 (availability and trade) and 2.6 (The legal environment), the duality of licit and illicit uses poses major difficulties for the regulation of cannabis cultivation and the sale of cannabis products. The prosecution authorities are required to provide additional evidence as proof that hemp under cultivation is being grown for the purpose of the illegal production of narcotic drugs or that hemp on sale is intended for illegal consumption. Such evidence is often not possible to produce or, where it is, only at an inordinately high cost in terms of administrative resources. Often the only means of proof is the evidence of the consumers of the hemp products themselves. Obtaining such evidence is a time- consuming and expensive process. Another difficulty for law enforcement officers is the fact that the bulk of the hemp plant can be channeled into legal uses after harvesting (hemp stems and leaves for fiber production, hemp seeds for oil production), while the parts with the highest THC content are used as drugs (flowering tops, fruit and resin). On 16 October 1998, in a case which attracted widespread notice, the 6 th division of the Zurich Bezirksgericht (District Court) held that the mere fact of declaring hemp bags as "scented pillows" constituted in itself an attempt to circumvent the BetmG and that selling these "aromatic pillows" was the equivalent of dealing in cannabis. Among the grounds relied upon by the Zurich court in its judgment was the fact that in the case of this product the element of narcotics production required by the BetmG had already taken place and the product was capable of being consumed in its present form. The above- mentioned difficulties together with regional variations in the perception of the drugs issue lead to substantial disparities from canton to canton in the way the authorities deal with cannabis users. Even the level of police charges against consumers of soft drugs is uneven. In a number of French- speaking cantons and in the canton of Aargau – as the following chart illustrates on the basis of various examples – the majority of charges brought for drug use offences concern hashish and marijuana. In the large German- speaking cantons, in contrast, the police concentrates to a much greater degree on heroin and cocaine users. Police figures (Swiss Narcotic Drugs Statistics, Federal Office for Police Matters) indicate that hashish consumption has barely increased in recent years whereas consumption of marijuana (most of it domestically produced) has risen sharply. The shift from hashish to marijuana is manifested both in the number of prosecutions and in the level of seizures.
In this chapter we will show the effects of the status quo in relation to cannabis on the situation in Switzerland. The following are the main (positive and negative) consequences of prohibition and, in particular, the prohibition of consumption:
2.8.1 General preventive effectiveness
2.8.2 Aid in crime detection
2.8.3 Higher propensity to undergo treatment
2.8.4 Prevention of consumption in public
2.8.5 Cost of policing and prosecution
2.8.6 Stigmatization of users
2.8.7 Doubts as to appropriateness and credibility
2.8.8 Inequality of justice
2.8.9 Corruption
Although some material is available on the consequences of the prohibitions in force in other countries, little comparable research has been undertaken in Switzerland. With the exceptions of 2.8.1, 2.8.5 and 2.8.8 there is no relevant statistical data on the issue either. The following discussion is based on case studies, observations and a weighing up of the evidence.
2.8.1 General preventive effectiveness
It had been hoped that the outlawing of consumption would reinforce general prevention. But the adoption of the measure failed to halt the rise in Swiss prevalence figures either for cannabis or for other illicit drugs; the figures for cannabis have increased approximately threefold over 20 years (surveys of conscripts 1971- 1993), and among schoolchildren they doubled between 1986 and 1994 (Müller et al 1997). Nor did the outlawing of cannabis consumption prevent the practice spreading to virtually all regions of Switzerland, including the rural cantons. Whether the prevalence levels would have been even higher had consumption not been made an offence, however, is not amenable to proof. But there is a good deal of evidence that consumption is held in check by health concerns rather than by the criminal law prohibition (see Chapter 5)
The criminalization of consumption was seen as a way of facilitating the identification of drug- dealers, since those arrested for drug use can be questioned as to the source of the drugs. But, at best, this method succeeds in tracking down small- time intermediaries. These days the police have more effective ways of exposing the major drug rings. It was not the Narcotics (Amendment) Act which first outlawed consumption. It had already been effectively illegal after the Swiss Federal Supreme Court held that one could not consume narcotic drugs without first having been in their unlawful possession or having otherwise obtained them, thereby committing a misdemeanor contrary to Article 19( 1) of the Swiss Narcotics Act (BGE 95 IV 179). The Amendment Act thus merely confirmed the existing situation, albeit reducing the seriousness of the offences of consumption and procurement for personal consumption from misdemeanors to infractions (with the insertion of Article 19a( 1)). This step was criticized by the police at the time as a softening of the law, since a person charged with an infraction (rather than with a misdemeanor, which cannabis consumption had been prior to the amendment) cannot be held in pretrial detention.
2.8.3 Higher propensity to undergo treatment
There is a belief that the threat of punishment coupled with the option of accepting drugtreatment as an alternative acts as an incentive to drug- users to undergo treatment in order to avoid having a sentence imposed. Whether and to what extent that is the case, however, is less certain than is generally perceived. Even more doubtful is the critical question as to whether this type of motivation can constitute a sound basis for the therapy to have a reasonable prospect of success. But even if the benefit of the doubt is given on both those scores, the argument still has no bearing on the issue of the criminalization of cannabis consumption. The threat of punishment under Article 44 of the Penal Code is of little relevance in cannabis cases because of the fact that cannabis consumption in itself rarely, if ever, gives rise to a need for treatment, let alone in- patient treatment. Accordingly, Article 19a( 3) BetmG, which gives the court power to send drug addicts for treatment even where they are charged only with consumption offences, has never been used in the case of cannabis – and rightly so. Moreover, there remains the possibility – if ever the need should arise – of using the provisions of the Civil Code, including the protective custody provision of Article 15b, as well as the other guardianship and child protection measures (Article 307ff. Civil Code).
2.8.4 Prevention of consumption in public
With regard to the negative consequences of open consumption, cannabis consumption is of relatively minor significance by comparison with the public injecting of heroin and cocaine. In any case, problems of public consumption could be dealt with by public order measures even if cannabis consumption were not prohibited.
2.8.5 Cost of policing and prosecution
Between 1981 and 1996 prosecutions for cannabis consumption rose approximately threefold (Müller et al 1997) reaching over 24,000 in 1996. Prosecutions for consumption offences account for the bulk of the total (approximately 80 percent); multiple prosecutions of the same individuals are also on the increase and now outnumber first- time prosecutions (Estermann and Rônez 1995). An analysis of the court decisions from 6 cantons has shown that 81 percent of convictions of minors and 39 percent of convictions of adults were for hashish consumption (Uchtenhagen 1993). Between 1991 and 1994 the number of convictions for mere consumption rose by 68 percent to a total of 14,168, involving 12,783 individuals. The majority of those convicted for mere consumption received a fine, but custodial sentences were also imposed, not all of them suspended (Rônez und Fink 1997). There are no recent figures for recidivism rates among those convicted of offences of this kind. However on the basis of the continuously rising figure for multiple convictions one may infer that the cost of enforcing the prohibition of cannabis consumption is out of proportion to its effectiveness as a means of preventing future acts of consumption.
Counseling and treatment providers report many cases of school pupils being expelled, apprentices or employees being dismissed, and of other serious consequences suffered by clients as a result of police investigations of drug offences. Similar consequences can result where employers order staff to submit to a urine test. The potential damage to an individual’s career prospects caused by dismissal and/ or conviction for cannabis consumption bears no relation to the gravity of the offence. However, there are no reliable quantitative data available on this subject.
2.8.7 Doubts as to credibility and appropriateness
The law treats cannabis on a par with heroin, cocaine and amphetamines, which have a far higher potential for addiction and risk. This tends to undermine the credibility of the law as it stands, since there is no valid basis for treating these different substances alike. In particular, the old argument that cannabis acts as a stepping- stone to harder drugs can no longer be used to justify this approach. What is more, the current legal status of cannabis and the scale of the resources deployed in order to enforce it call into question the appropriateness of the present legislation. This is particularly so in circumstances where the police and the public prosecution services become so over- stretched that they are unable to deal adequately with other matters. The resources expended on repressive measures in the drugs arena also appear disproportionate when compared with the level of spending on prevention and treatment.
The current legislation is not uniformly enforced in the cantons. For example, the number of prosecutions for consumption is unusually high in the cantons of Berne, Aargau and Vaud compared to other cantons (Müller et al 1997). Similarly in Appenzell Innerrhoden and Nidwalden the proportion of prosecutions for consumption is 90 percent (Estermann and Rônez 1995). Across all the cantons this rate ranges from as low as 24 percent to as high as 90 percent. By and large, the authorities in urban centers concentrate more on combating drug trafficking than those in rural areas, whereas they do not pursue cannabis consumption as vigorously or systematically. In addition, the evidential requirements vary. In cantons where a fine is the normal sentence for consumption offences, fines frequently remain unpaid but are not converted into prison sentences as a result; in those cases the individuals concerned go unpunished (Cesoni et al, no year given). All this produces a situation of unequal justice which, while the reasons for it are apparent, nonetheless casts further doubt on the credibility of the criminal law in this area.
Differences in the application of the criminal law together with the profit potential of the drugs trade are two factors which favor corruption. A further factor is the law’s attitude to cannabis consumption which, in the eyes of many people today, is devoid of any rational basis. To what extent corrupt practices may have actually crept in, however, is a matter on which there is no reliable material available.
Literature
Cesoni ML, Bornoz N, Sträuli B (no year) :Mise en oeuvre de la loi sur les stupéfiants. Les décisions judiciaires. Première partie : Fondements et Synthèse de Recherche. Faculté de droit, University of Geneva
Swiss Federal Statistical Office, Berne. Drogen und Strafrecht in der Schweiz. Ergebnisse zweier Sondererhebungen 1991 und 1994.
Estermann J, Rônez S (1995) : Drogen und Strafrecht in der Schweiz. Zeitreihen zu Verzeigungen, Strafurteilen und Strafvollzug. Swiss Federal Statistical Office, Berne
Hug- Beeli G (1995): Handbuch der Drogenpolitik, Berne, Haupt Müller R, Meyer M, Gmel M (1997) : Alkohol, Tabak und illegale Drogen in der Schweiz 1994- 1996. SFA, Lausanne
Rausch Ch (1991): Drogenarbeit und Drogenpolitik in Europa, Berlin, Schäuble Verlag Richard D (1995): Les Drogues, Paris, Flammarion Rônez S, Fink D (1997) : Uchtenhagen A (1993). Anwendung des Betäubungsmittelgesetzes; Auswertung gerichtlicher Verurteilungen in sechs Kantonen. Drogalkohol 17 : 209- 216