Drug consumption is relatively widespread in Switzerland. The most commonly consumed illegal substance is cannabis. Indeed, nearly one-third of people over fifteen years old have tried cannabis. Furthermore, some Swiss cities have some of the highest rates of cocaine and ecstasy use in Europe. The consumption of these and other drugs is criminally sanctioned in Switzerland. Individuals who commit the offense of drug consumption are therefore punishable. This article aims to provide information about the criminal risks faced by individuals who consume drugs as well as information about their rights as defendants.
The Offense of Drug Consumption
The offense of drug consumption is defined in Article 19a of the Federal Act on Narcotics and Psychotropic Substances (LStup), which stipulates that anyone who, without authorization, intentionally consumes narcotics or commits an offense under Article 19 to ensure their own consumption is subject to a fine. The offense of drug consumption is classified as a contravention and is punishable by a fine under Article 103 of the Penal Code (CP). Article 106 paragraph 1 CP provides that, unless otherwise specified by law, the maximum amount of the fine is CHF 10,000. If the fine is not paid, the judicial authority may impose a custodial sentence in substitution.
Regarding specifically the consumption of substances with cannabis-like effects, the legislator has introduced the sanction commonly known as the administrative fine. The fine is generally CHF 100, as provided in Article 28b LStup. When the fine is imposed, the cannabis-containing product is seized by the authorities. The legislator has therefore established a specific regime for cannabis consumption with the introduction of the administrative fine.
When a person is suspected of consuming narcotics, the criminal authorities, usually the police, will proceed with the arrest and questioning of the person in the role of defendant. The status of defendant confers several rights, which we will discuss below.
The Rights of the Defendant
According to Article 111 paragraph 1 of the Code of Criminal Procedure (CPP), a defendant is defined as any person who, following a report, complaint, or procedural act carried out by a criminal authority, is suspected, accused, or charged with an offense.
When a person is arrested for drug consumption, they are generally given the status of defendant. Consequently, they have the right not to incriminate themselves and can refuse to testify and cooperate with the procedure. However, it should be noted that they are required to comply with coercive measures provided by law (Article 113 paragraph 1 CPP). Thus, a person who is detained for drug consumption is not obligated to testify or provide information about their consumption. However, criminal authorities may order coercive measures to gather evidence, including conducting a search.
In some cases, the next step after police arrest is the questioning. Here too, the status of defendant provides rights. Moreover, at the beginning of the questioning, the police or the public prosecutor is required to inform the defendant of their rights in a language they understand (Article 158 paragraph 1 CPP). In this context, those conducting the questioning typically provide a form to the defendant that contains a reminder of their rights and obligations. It is advisable to read the form carefully before signing it.
The defendant must be informed that a preliminary procedure has been opened against them for the offense of drug consumption. They are also informed that they can refuse to testify and cooperate, as mentioned earlier. They have the right to call a defense lawyer or request a public defender. This means that a lawyer can participate in the defense of the defendant, and the questioning will continue in their presence. If the defendant does not understand the language of the procedure, they can request the assistance of a translator or interpreter. The interpreter assists and translates what is said during the questioning and also translates written documents presented during the questioning, such as the reminder form of the defendant's rights and obligations.
Drug consumption, and particularly cannabis consumption, is an offense whose severity is relative as it is punished by a fine. The consequences are therefore not as significant as those for committing a crime or a felony. For example, as a contravention, no entry is made in the criminal record for the simple consumption of drugs. Nevertheless, although it is not severe, drug consumption remains an offense, and authorities are therefore required to prosecute individuals suspected of consuming illegal drugs. In the context of arrests for drug consumption, it is important to remember that defendants have a fundamental right not to self-incriminate.
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