· the thrust of the Federal Narcotics and Psychotropic Substances Act (herein after referred to as Narcotics Act) Swiss federal law with respect to narcotics and psychotropic drugs;

· a brief overview of how Switzerland’s drug policy is managed;

· statistics on drug use and related crimes;

· data on the cost of Switzerland’s drug policy;

· a summary of commission of experts reports which have guided Swiss drug policy and legislation;

· a brief overview of the bill to amend the Federal Narcotics and Psychotropic Substances Act; and

· the record from 1990 to 2000.

This paper is part of a series of country reports prepared by the Library of Parliament for the Senate Special Committee on Illegal Drugs.

SWITZERLAND’S POLITICAL STRUCTURE⁽[1]⁾

Switzerland is a Confederation⁽[2]⁾ composed of 26 states (cantons and half‑cantons) with a population of just over 7 million. The cantons are divided into 2,904 political communes. The Federal Constitution, which was adopted in 1848, is the legal foundation of the Federation. It guarantees the basic rights of individuals and citizen participation in public affairs, divides the powers between the Confederation and the cantons and defines federal jurisdictions. Switzerland has several linguistic, ethnic and religious communities. Under section 4 of the Constitution, German, French, Italian and Romansh are the four official languages. The majority of Swiss speak German (63.7%). Each canton has its own constitution, parliament, government and court system. Cantons have certain legislative powers as provided by the Federal Constitution.

Under the Federal Constitution, there are three main governing bodies: the Federal Assembly (or Parliament), the Federal Council (or government) and the Federal Court. The Swiss Federal Assembly has administrative and judicial, but not legislative, powers. The power to legislate is delegated to the two Chambers of Parliament: the Council of States (Chamber of cantons) which has 46 canton representatives who are elected under a system determined by each canton, and the National Council (the People’s Chamber), which consists of 200 members who are elected in a general election by proportional representation. Both chambers have the same rights and legislative powers. All bills and federal ordinances must receive the assent of both chambers to become law. Furthermore, referenda are an integral part of Swiss democracy. A federal law or ordinance can be put to a referendum if 50,000 citizens ask for one within 100 days of its publication. Any amendment to the Federal Constitution must be put to a popular vote. If the majority of voters support new legislation or amendments to an existing statute, the changes are incorporated into legislation and receive force of law. However, any constitutional amendment must receive the support of both the majority of the voters and the majority of cantons.

The Federal Council represents the executive power. Its seven members are elected by the Federal Assembly for a four-year mandate. The Federal Council has the usual powers granted a modern government. It sets national policy, drafts legislation, negotiates and ratifies treaties, appoints officials and oversees their work. The Federal Council also oversees the cantons’ activities.

Swiss citizens are subject to three legal jurisdictions: the commune, canton and federal levels. The law is applied first and foremost at the canton level, including federal law. Civil and criminal matters are handled by the cantons as well. However, under the Constitution, there is a federal court responsible for ensuring that federal law is interpreted consistently. This court therefore ensures that the criminal and civil codes, which are both federal laws, are applied consistently. The main role of the tribunal is as a court of appeal; it monitors rulings made by cantonal or federal authorities.

Understanding Switzerland’s political structure helps us understand its drug policy. In fact, several authors⁽[3]⁾ have argued that Switzerland has 26 different drug polices, one for each canton and half‑canton. This diversity is often overlooked, since the media and drug literature have focussed in particular on the “open drug scenes” in Zurich and on the medical prescription of heroin for severely dependent addicts, a practice endorsed by the Swiss Confederation.⁽[4]⁾

This paper will mainly focus on Switzerland’s federal drug policy, which aims to harmonize the various drug strategies of the cantons, and on the 1951 Narcotics Act (which was revised in 1975 and in 1995).

THE SWISS DRUG POLICY

A. A Harm Reduction Policy

The recent history of Switzerland’s drug policy began towards the end of the 1960s with the increase in psychoactive drug use. As a result, the cantons developed a first drug policy, which was based on three approaches, namely:

· the repression of drug use and trafficking;

· prevention measures aimed at young people;

· treatment based on abstinence, which at the time already included methadone programs.⁽[5]⁾

At the beginning of the 1980s, the HIV-AIDS epidemic hit many countries, including Switzerland. There were “open drug scenes” in several Swiss cities, such as Zurich, Bern, Olten and Solothurn. As a consequence, the miserable state of drug addicts was becoming increasingly visible contributing to growing concern over the situation. Public and social services were created to help the addicts and protect them against HIV and AIDS. Needle exchange programs were set up and addicts were encouraged to be vaccinated against hepatitis. The Swiss Federal Office of Public Health (SFOPH) supported many of these services and still does so today, arguing that they help prevent the spread of AIDS. However, the main approaches of Switzerland’s official drug policy remained prevention, therapy and law enforcement.⁽[6]⁾

In the 1990s, Switzerland introduced new measures to reduce the problems associated with drug use and adopted a new national drug strategy. The new strategy introduced another approach, namely harm reduction, which led to the creation of the fourfold approach. The role of the Confederation in the area of drug policy becomes more defined and aims to support the efforts made by cantons, cities and communes and by private organizations by providing them with reference material, scientific data and training for professionals. On February 20, 1991, the Swiss government adopted a program of federal measures to reduce the problems related to drug use,⁽[7]⁾ currently known as “ProMeDro,”^([8]) and which was based on the concept of harm reduction. The objectives of the program were as follows:

· to decrease the number of new drug users and to prevent people from becoming drug dependent;

· to help users overcome their addiction (through therapy and social reintegration);

· to improve the living conditions and the health of drug users, to reduce harm and to maintain their social integration.⁽[9]⁾

To achieve these goals, the following measures were introduced:

· primary and secondary prevention measures aimed at young people and awareness campaigns to prevent them from experimenting with drugs;

· patient management and treatment to help users overcome their addiction;

· harm reduction, AIDS prevention and social reintegration measures to help addicts cope with their dependency in the best possible health conditions and to ensure that the door to a drug-free life remains open;

· ongoing training and development programs for professionals (including those working in the areas of sentencing, programs and social services, as well as hospital workers, pharmacists and family doctors) and for people acting as mediators (such as teachers, youth group facilitators, business personnel and parents);

· the development, co-ordination and regular publication of scientific research on drugs;

· the evaluation of projects and measures in the fields of prevention, patient management and treatment to help identify any gaps or shortcomings, but also to pinpoint and highlight any progress achieved;

· the development of new documentation and information services normally provided by the Swiss Confederation; and

· the co-ordination of measures adopted by the Confederation.⁽[10]⁾

These measures mark the beginning of Switzerland’s drug policy, based on a fourfold approach: prevention, law enforcement, treatment and harm reduction. Between 1991 and 1999, the SFOPH initiated and/or supported approximately 300 projects and programs under the “ProMeDro” initiative at the cost of 15 million francs per year.

Among other activities, the Federal Council asked for a study on heroin assisted treatment for severely dependent heroin addicts who had failed at other treatment programs. In 1992, the Council passed an order authorizing clinical trials with the medical prescription of heroin, along with a strict scientific evaluation of the trials. The trials began in 1994 and ended on December 31, 1996. The final evaluation report was published in July 1997 and concluded that:

· heroin assisted treatment for severely dependent heroin addicts improved their physical and/or psychic health, as well as their quality of life (in terms of housing, work and other areas);

· participants’ illegal use of heroin and cocaine decreased;

· the users involved in the program committed fewer crimes (the incidence of theft and property and drug trafficking offences fell sharply).⁽[11]⁾

The Federal Council followed the report’s recommendations, and on March 8, 1999, passed the Ordinance governing the medical prescription of heroin authorizing heroin assisted treatment, setting objectives, eligibility criteria, administrative measures and providing for such treatment.

Over the same period in 1993 and 1994, two people’s initiatives were presented with opposite objectives. The first initiative called for a strict, abstinence-oriented drug policy (“Youth Without Drugs”),⁽[12]⁾ and the second proposed the legalization of drug use (“DroLeg”).⁽[13]⁾ The federal government and Parliament found both initiatives too extreme and recommended their rejection. On September 28, 1997, Swiss voters rejected the initiative “Youth Without Drugs” with a majority of over 70%. On November 29, 1998, Swiss voters rejected the “DroLeg” initiative with a majority of over 74%. By rejecting both initiatives, the Swiss population showed its massive support for the Confederation’s more measured approach to drug policy.

Between the time that these popular initiatives were launched and subsequently voted down, some major events influenced the evolution of Swiss drug policy. In 1994, the violence occurring on the “open drug scenes,” from Letten to Zurich, made headlines in the international media. Certain government parties (Socialist, Christian Democrat and Radical) clamoured for decriminalization of drug use, increased access to heroin assisted treatment, stronger prevention measures and stiffer sentences for drug traffickers.⁽[14]⁾ The open drug scene in Zurich was shut down in 1995, resulting in new co-operation between the Federal Council, canton representatives and the city of Zurich. A joint task force, called the Drug Delegation, was established. This unusual co-operation made it possible to implement measures that would never have got off the ground under more traditional circumstances: the creation of prison spaces in Zurich for drug traffickers, the adoption of emergency federal measures allowing for more drug addicts to participate in heroin assisted treatment and the creation of centres for the treatment of hard core users.⁽[15]⁾ Today the “open drug scenes” are a thing of the past.

Finally, in October 1998, the program of federal measures to reduce the problems related to drug use (ProMeDro) was renewed for a four-year period. The Confederation set a budget of 18 million francs per year to run this program and staffed it with 15 positions from the Federal Office of Public Health.⁽[16]⁾ The main priorities for ProMeDro from 1998 to 2002 are as follows:

1. to strengthen the Confederation’s commitment to primary and secondary prevention and early intervention to prevent addiction;

2. to consolidate the range of treatments in a co-ordinated system, thereby increasing the likelihood that addiction can be overcome;

3. to consolidate harm reduction and social integration measures;

4. to establish and operate effectively a national epidemiological monitoring centre based on the focal points REITOX model of the European Monitoring Centre for Drugs and Drug Addiction⁽[17]⁾;

5. to forward, in an effective manner, the findings of epidemiological studies, scientific research and evaluations to experts and decision makers;

6. to implement a process to foster quality management throughout the entire ProMeDro program, tailored to the needs of the different fields, useful to and used by more than half of the addiction agencies and decision makers concerned (Confederation, cantons, communes, private institutions);

7. to ensure optimum co-ordination and organization for various commissions and forums, mainly for the Conference of Canton Delegates on Drug Addiction Problems and the National Drug Liaison Committee.⁽[18]⁾⁽[19]⁾

Hence the Confederation has set itself up as a political hub for drug policy and national co-operation.

1. First Pillar: Prevention

Prevention measures are aimed primarily at achieving three objectives:

· to prevent drug use among individuals, especially children and youth;

· to prevent the problems and harmful effects related to drug use from spilling over onto the individual and society;

· to prevent individuals from going from casual drug use to harmful use and addiction, with all of its known consequences.⁽[20]⁾

The Confederation’s prevention strategy comprises six objectives:

· to make prevention part of everyday life;

· to focus not only on drugs but also on personal resources and the strengthening of the individual’s social network;

· to create alliances between the Confederation, the cantons, the communes and private structures (family, schools, recreational associations, etc.);

· to tap into scientific research;

· to enhance early intervention;

· to ensure the viability of projects funded by the Confederation, even when the Confederation opts out.⁽[21]⁾

It should be pointed out that the most notable change in prevention has been a transition from the concept that prevention was a matter of preventing someone from ever trying drugs to today’s concept of preventing the health and social problems related to drug use, thereby integrating the person’s social network and environment as well.

2. Second Pillar: Treatment

In Switzerland, there are many types of in-patient and out-patient treatment available to people suffering from drug addiction. The objectives sought through treatment include:

· breaking drug addicts of their habit;

· social reintegration;

· better physical and mental health.⁽[22]⁾

As mentioned earlier, heroin assisted treatment has been a recognized type of therapy in Switzerland since 1999. By the end of 1999, there were already 1,650 treatment spaces reserved for hard core heroin addicts in 16 treatment centres. In addition, during the same period, approximately 50% of opiate addicts (estimated to be 30,000) were being treated with medically prescribed methadone, compared to 728 individuals who were receiving this type of therapy in 1979. Those individuals addicted to one or more drugs also have access to in-patient treatment based on abstinence, to a limited number of spaces in transition centres, specialized withdrawal units or clinics, and treatment institutions, as well as out-patient consultation centres.⁽[23]⁾ In March 1999, there were 100 institutions providing in-patient withdrawal and rehabilitation treatment in Switzerland, for a total of 1,750 spaces.⁽[24]⁾

3. Third Pillar: Harm Reduction

The first so-called “low threshold” coping skills institutions made their appearance in Switzerland in the mid 80s. Their purpose was to reduce the health and social risks and consequences of addiction. First and foremost, these institutions gave drug addicts a roof over their heads and were often equipped with cafeterias, showers and laundry facilities. They provided addicts with someone who would listen and talk to him or her. These facilities have evolved over the past ten years and now incorporate medical support for harm reduction (for example, prevention of AIDS and other infections, needle exchange, out-patient medical care, etc.) and social support (street work, soup kitchens, emergency shelters, low threshold centres, etc.). The Swiss Federal Office of Public Health supports many harm reduction projects as part of ProMeDro. Such projects include:

· needle exchanges for drug addicts and inmates;

· injection sites (a statutory notice makes such sites legal);

· offers of employment and housing;

· support for women who prostitute themselves to buy drugs;

· consultation services for the children of drug-addicted parents.⁽[25]⁾

Furthermore, the cantons, communes and private institutions also provide such programs. In 1995, the SFOPH established a central service to support certain social assistance agencies, particularly those with low thresholds, and to advise the cantons, communes and private institutions on planning and funding harm reduction programs. Drug addicts have access to such programs without having to meet any particular prerequisites. The objective of these harm reduction services is to limit as much as possible the negative consequences of addiction so that the addict is able to resume a normal existence. In addition, these measures are aimed at safeguarding and even increasing the addict’s chances of breaking the drug habit.⁽[26]⁾

4. Fourth Pillar: Enforcement

The primary goal of enforcement is to reduce supply and to fight against the trafficking of narcotics, the illegal financial transactions related to such trafficking (for example, money laundering) and organized crime. Users are not the number one target of police operations in Switzerland. Enforcement of the federal Narcotics Act is, to a large extent, the responsibility of the cantons, although the Confederation does monitor the situation closely and can call for and carry out police investigations into drug trafficking. It should be noted that canton and commune laws on policing differ and sometimes result in varying interventions. Furthermore, the drug milieu changes quickly and the methods used to fight drug-related problems are improving and adapting to this milieu.⁽[27]⁾ These methods include:

· focussing enforcement activities on the manufacturing of drugs, trafficking and money laundering;

· assigning more officers to the “drug police” and making greater use of specialists from other sectors (finance professionals);

· intercantonal and international co-operation (agreements with police forces from neighbouring countries);

· accelerating and improving the processing of information (networking systems and access to the police department networks from many European countries);

· improving co-operation between the police and the private sector (banks, chemical industries, etc.);

· improving police effectiveness and making greater use of front-line liaison workers;

· strengthening the legal structure (for example, policing legislation, witness protection).⁽[28]⁾

B. The Legal Framework

Narcotics legislation in Switzerland has, as is the case in many other countries, been closely tied to the evolution of international conventions. For instance, the 1924 Narcotics Act was implemented to enable Switzerland to fulfil the commitments it had made by signing the International Opium Convention of 1912. This law prohibited certain narcotics such as opium, coca leaves, morphine, heroin, cocaine and their derivatives. As result of Switzerland signing other conventions and experience gained from enforcing the 1924 Act, the federal Narcotics Act was totally revamped and a new law adopted on October 3, 1951. This legislation prohibited the growing, manufacture, sale, distribution and possession of opiates, coca derivatives and cannabis. The purpose of the Act was, on the one hand, to regulate the use of narcotics for medical purposes and, on the other hand, to fight against both the abuse and illicit trafficking of narcotics. The Act was amended slightly in 1970 when Switzerland signed the Single Convention on Narcotic Drugs of 1961.

Indeed, up until the 1960s, the Act was primarily a response to Switzerland’s commitments under international conventions because narcotic use was relatively marginal and there was not any real narcotics abuse problem per se to warrant specialized legislation. Moreover, the Federal Council had recognized as early as 1951 that drug addiction was a serious pathology that should not be prosecuted as a crime or an offence. When drug-related problems emerged in the early 1970s, the Act was revised in 1975 to provide for medico-social and assistance measures for drug addicts, differentiated punishment for drug use and tougher criminal provisions for illegal drug trafficking.^([29])

Following Switzerland’s accession to the 1971 UN Convention on Psychotropic Substances, the 1972 amendment to the Single Convention and the adoption of the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Switzerland has not yet ratified this convention), the Narcotics Act was revised in 1996 to provide for the control of narcotic raw materials. Since then, dependence-producing substances and preparations with morhpine-, cocaine- or cannabis-like effects have been considered narcotics under this legislation (Narcotics Act, s. 1).^([30]) The list of substances is currently compiled by the Swiss Agency for Therapeutic Products.^([31])

With respect to the production, distribution, acquisition and use of narcotics, the current legislation provides that narcotics and psychotropic substances cannot be cultivated, manufactured, prepared or sold without cantonal authorization, in accordance with conditions set by the Federal Council (Narcotics Act, s. 4). In addition, a special permit from the Federal Office of Public Health is required for the importation or exportation of controlled narcotics (Narcotics Act, s. 5). Furthermore, under section 8 of the Narcotics Act, the following narcotics cannot be cultivated, imported, manufactured or sold: smoking opium, heroin, hallucinogens (such as LSD) and hemp for the extraction of narcotics or hash. Section 8 also sets out the conditions governing the treatment of addicts with medical prescription of certain narcotics.

The current legislation also contains criminal provisions that apply to: anyone who unlawfully cultivates, manufactures, extracts, processes or prepares narcotics; anyone who, unless authorized, stores, ships, transports, imports, exports, provides, distributes, sells, etc., or buys, holds, possesses or otherwise acquires narcotics; and anyone who finances illicit traffic in narcotics, acts as an intermediary or encourages consumption (Narcotics Act, s. 19). Section 19 offenders are liable to imprisonment or a fine depending on the seriousness, according to the Narcotics Act, of the act committed. The intentional consumption of narcotics or the commission of a section 19 offence for personal use is punishable by detention or a fine (Narcotics Act, s. 19a). For petty offences, the appropriate authority may stay the proceedings or waive punishment and may issue a reprimand (Narcotics Act, s. 19a(2)). However, preparing narcotics for personal use or for shared use with others at no charge is not punishable where the quantities involved are minimal (Narcotics Act, s. 19b). Finally, anyone who persuades or attempts to persuade someone to use narcotics is also punishable by detention or a fine (Narcotics Act, s. 19c).

C. Administration of Swiss Drug Policy

The Confederation is the hub of Swiss drug policy and co‑ordination and harmonization of the various policies and measures put in place by cantons, cities, local authorities and private institutions. Under section 15c of the Narcotics Act, the Confederation is responsible for the following tasks [UNOFFICIAL TRANSLATION]:

¹ Through grants or other measures, the Confederation shall encourage scientific research on the effects of narcotics, the causes and consequences of narcotics abuse and ways to combat that abuse.

² The Federal Council shall establish the procedures for awarding and calculating grants and shall determine grant amounts.

³ The Confederation shall assist cantons and private organizations in the administration of the Act. The Confederation shall, inter alia, set up a documentation, information and co‑ordination office and encourage the training of staff specialized in the treatment of addicts. The Federal Council shall establish the relevant procedures.

Under section 15a of the Narcotics Act, the cantons are responsible for the following tasks [UNOFFICIAL TRANSLATION]:

¹To prevent narcotics abuse, the cantons shall promote information and consultation and set up the institutions needed to do so.

² The cantons shall provide for the protection of those in need of medical treatment or other assistance on account of narcotics abuse and shall assist their return to work and society.

³ The appropriate authorities may delegate certain tasks and responsibilities to private organizations.

4 The cantons may prohibit the acquisition of narcotics. They shall give notice of their decisions to the Federal Office of Public Health, which shall relay those decisions to health officials in the other cantons for the information of physicians and pharmacists.

⁵Prescribing, dispensing and administering narcotics for the treatment of addicts shall be subject to special cantonal authorization.

⁶ Where, owing to addiction, a person might constitute a danger to traffic circulation, the service with knowledge of that danger shall advise the appropriate authority.

In principle, the administration of the Narcotics Act falls under cantonal jurisdiction, as the cantons have authority for criminal procedure. There are usually a number of stages in cantonal criminal proceedings: police investigation, preliminary hearing, dismissal or referral to court and court decision. In minor cases punishable by fine or detention – and this is the case for a number of offences under the Narcotics Act – a penalty can be imposed by an administrative authority (for example, a prefect). The subject, however, is entitled to object and be tried by a court, usually a police court composed of a single, legally trained judge. Cases of moderate seriousness are usually tried by a district court (correctional court) over which a legally trained judge presides, assisted by lay judges. Finally, the most serious offences are heard by assize courts made up of at least one legally trained presiding judge and a jury of citizens. However, because this type of procedure is lengthy, elaborate and costly, most cantons tend to replace assize courts with either district courts or a higher court made up of permanent judges (criminal court).^([32])

The Confederation also plays a role in combatting drug trafficking; under section 29 of the Narcotics Act, the Federal Office of Police (FOP) is the central Swiss agency responsible for controlling illicit traffic in narcotics. The FOP gathers information for the prevention of offences under the Act and to facilitate the prosecution of offenders. In order to do so, the Office maintains contact with other federal government agencies involved (Office of Public Health, Customs Administration, the Swiss Post Office administration, cantonal police authorities, central agencies in other countries and the International Criminal Police Organization (Interpol)). To its cantonal and international partners, the FOP is a focal point for information, co‑ordination and analysis in the area of Swiss internal security.^([33]) Since 1996, after a trial period, the Office has operated a drug database called DOSIS. This database is an invaluable tool for the cantons. Cantonal narcotics squads are connected to the system and have direct access to DOSIS because they are required, as is the FOP, to enter information into the database. This system thus promotes co‑operation between the FOP and cantonal police authorities. Only information on the illicit narcotics trade is entered into the system; information on those who only use drugs is excluded.^([34])

D. Statistics on Narcotics Use and Offences under the Narcotics Act

This section summarizes parts of a Federal Office of Police publication entitled Situation Suisse : Rapport de Situation 2000 [2000 Situation Report on Switzerland],^([35]) prepared by the Analysis and Prevention Service as a transitional product, given that a comprehensive report is to be published in 2002. It should be noted that methodological deficiencies underlie the statistics in this report. Switzerland is a federal state with 26 cantonal entities (cantons and half-cantons) and offences are not recorded based on the same criteria in every canton. Furthermore, the statistics do not make it possible to control for double or multiple entries; some suspects may appear repeatedly in the same year or in different cantons. Finally, only some of the criminal acts under the criminal code are taken into account.^([36])

1. Use

The report found the following trends in 2000:

· a sharp rise in marijuana use;

· a sharp rise in cocaine use;

· a sharp rise in multiple addiction (use of various kinds of narcotics);

· a sharp rise in synthetic drug use (amphetamines and methamphetamines) – Thai pills^([37]) have become the “in” drug;

· a downward trend in injection heroin use;

· virtually no open drug scenes in Swiss cities;

· 205 deaths due to drugs and recorded by the police (as compared to 405 in 1991) – those over 27 were the most affected age group, for men and for women, and Zurich and Bern were the most affected cantons, with 50 and 36 deaths due to drugs, respectively;

· 18- to 24-year-olds remain the most frequent users of marijuana, hash and hallucinogens, while those over 30 are the most frequent users of cocaine and heroin.^([38])

2. Offences

Federal Narcotics Act drug-related offences reported cases rose from 44,307 in 1999 to 46,558 in 2000. This represents an important increase over the 18,800 reported cases in 1990. A comparison of the number of reported cases per offence type in 1997 and 2000 reveals a downward trend for drug trafficking, smuggling, dual offences^([39]) and an overall increase – with the exception of 1999^([40])– in drug use cases. A table summarizing reported drug-related cases, seizures and deaths between 1975 and 2000 is included in appendix B.

The number of reported cases of drug dealing in 2000 fell to 3,021 from 3,711 in 1999. This represented a drop of 18.5%. However, some cantons posted a major hike in reported cases. A case in point was the city of Basel, which recorded an increase of 31%. The report urges caution in interpreting these figures, suggesting that the major drop in the number of reported cases is not in fact due to an improved situation in these specific cantons, but rather to a decrease in the number of cases reported by the police as investigation capacity and officers are deployed in other areas. It should be noted that of a total of 3,021 drug trafficking cases, 78% involved foreigners and 22% Swiss citizens. With respect to the sex of offenders, 82% were men and 7% were women. The sex of the remaining 11% was unknown. The largest percentage (45%) of male offenders were aged between 18 and 24, whereas the majority of female offenders were over 30 (56%), followed by the 18-to-24 age group (27%).^([41])

Graph 1

Source: Federal Office of Police, Situation Suisse : Rapport de Situation 2000 [2000 Situation Report on Switzerland], 2001, p. 19.

Reported cases of heroine and cocaine trafficking fell by 10% from 1999 levels and accounted for 62% (heroine 29% and cocaine 33%) of all drug dealing cases recorded in 2000. Dealing in these particular substances is controlled by foreign criminal organizations. It is estimated that Switzerland consumes approximately eleven tonnes of heroine and of cocaine annually. Marijuana trafficking activities are controlled by Swiss dealers. Reported marijuana-related cases represented 15% of all offences. The production of cannabis products continues to grow, with a major proportion of it being distributed through the approximately 230 hemp shops located throughout the country. The domestic production of hashish and marijuana is estimated at approximately 10 tonnes and 200 tonnes respectively, worth between 600 and 700 million francs. Annual sales of drugs on the black market is estimated at approximately three billion francs. Dealing in synthetic drugs also increased from 3% in 1999 to 8% in 2000. Dealing in “Thai” pills (yaba pills) increased and is dominated by Asian criminal gangs linked to prostitution.^([42])

The number of reported cases of drug use rose from 35,294 in 1999 to 37,716 in 2000. However, it is important to understand the context underlying this figure. The decrease in cases reported in 1999 was probably due to the redeployment of police capacity to other areas. Of the 37,716 offenders, 68% were Swiss nationals and 32% were foreigners. Male offenders (84%) once again outnumbered the females (15%). 42% of male offenders were between 18 and 24, while 27% were over 30. Among female offenders, the over-30 and the 18-to-24 age groups shared top position (35% and 34% respectively).^([43])

Marijuana was by far the number one drug involved in consumption-related offences. Offences involving this particular narcotic jumped from 15,734 in 1998 to 21,492 in 2000. Heroine was the second most popular drug involved in consumption-related offences. It accounted for 11,721 cases, down from 15,870 in 1998 and 13,441 in 1999. Hashish and cocaine offences were also down in comparison with the two previous years. Hashish offences fell from 11,561 to 9,170, while cocaine was involved in 8,644 cases, down from 10,398. The number of consumption-related offences involving amphetamines and other hallucinogenic substances was relatively low compared to cases involving other narcotics. However, the number of cases involving amphetamines increased from 579 in 1998 to 1,043 in 2000. Moreover, consumption-related offences involving hallucinogenic substances rose from 1,059 in 1998 to 1,627 in 2000. However, very few LSD consumption-related offences were recorded, falling from 238 in 1998 to 192 in 2000. It is also worth noting that the number of first-time narcotic consumption-related offences increased by 3% to 14,443 from 1999 levels, whereas the number of repeat offenders dropped by 5% to 21,414.^([44])

Graph 2

Source: Federal Office of Police, Situation Suisse : Rapport de Situation 2000 [2000 Situation Report on Switzerland], 2001, p. 31.

The cantons recorded 215 narcotics-smuggling offences in 2000, a drop of 19.4% from 1999 levels. As in the case of trafficking-related offences, 74% of narcotics-smuggling cases involved foreigners and 74% were perpetrated by men. The Federal Customs Service (i.e. customs officers and border guards) reported 4,041 smuggling offences. In 2000, seizures yielded 128 kg of cocaine (including 72 kg which was in transit and not destined for Switzerland), 99 kg of heroine, 1,066 kg of cannabis-based products (hashish and marijuana, including 72 kg in transit and not destined for Switzerland), 1,278 kg of khat and approximately 109,000 units of psychotropic substances (ecstasy, amphetamines, LSD, etc.).^([45])

3. Convictions

The following information was provided at our request by the Federal Statistical Office. The statistics cover convictions under the Narcotics Act. These figures are organized according to main penalty, sex, origin and age category from 1984 to 1999 (see Appendix C). It should be stressed that Swiss criminal conviction statistics include only those convictions recorded on personal criminal records. Offences punishable by fines, disciplinary penalties and rulings are excluded. It should also be pointed out that approximately 0.5% of 1999 judgments have been omitted (under appeal or delayed input).

The number of convictions under the Narcotics Act peaked at 9,491 in 1994. By 1999, it had fallen off to 8,032. Until 1997, the most common type of offence for which convictions were recorded was “drug consumption and trafficking.” However, in 1998 and 1999, consumption-only offences accounted for the highest number of convictions. There were 3,194 and 2,868 convictions for this type of offence, compared with 3,118 and 2,768 combined “consumption and trafficking” related convictions. Trafficking-only convictions accounted for the third largest number of convictions. However, convictions for this type of offence posted a significant increase during the 1990s, rising from 1,005 to 2,396 in 1999.

Graph 3

A major increase was posted in consumption-and trafficking-related offences in 1993-1994. This has been followed by an ongoing decline since 1995. Convictions of this type hit their lowest level in 1999 (2,768). This compares with 3,039 convictions in 1984 and 4,236 in the peak year of 1994. The most widely used sentence during this period was a suspended sentence, followed by incarceration.

Graph 4

The number of consumption-only convictions also peaked in 1994 (3,320). This figure fluctuated between 1995 and 1999. In 1999, it stood at 2,868, up from 1,656 in 1984. The most widely used sentence for consumption-related offences was a suspended sentence, followed by incarceration.

Graph 5

Convictions for trafficking-only offences increased from 723 in 1984 to 2,396 in 1999. Suspended sentences and incarceration were the most widely favoured penalties until 1991. However, suspended sentences have been increasingly widely used since 1992 and were the preferred sentence in 1999.

Graph 6

4. Drug-related Costs

According to the data from the Swiss Federal Office of Public Health (SFOPH), estimated costs of the drug problem (1991 to 1994, annual average) are:

	million SFr
Enforcement	500
Care, treatment, therapy, rehabilitation	220 to 260
Harm reduction	120 to 200
Prevention	30 to 35
Research and training	16
Total	886 to 1,011

Around twice as much is spent on the criminal prosecution of drug use and trafficking as on treatment. The share of prevention in total costs (around 3%) is comparatively low. Note that according to the Swiss Institute for the Prevention of Alcohol and Drug Problems, the direct costs of tobacco and alcohol consumption to the national economy are estimated at 5 billion Swiss francs and 3 billion Swiss francs respectively.⁽[46]⁾

With respect to penalizing drug consumption and activities leading to such consumption, a report by Willy Oggier, commissioned by the SFOPH, estimated the 1997 prosecution and enforcement costs at about 46.2 million francs. The sensitivity analysis shows minimum and maximum values of 45.5 and 55.3 million francs respectively. According to Oggier, the costs had increased by more than 6% between 1994 and 1997. He believes that 30 million francs per year could be saved in the areas of enforcement and prosecution if the use of drugs and preparatory activities were decriminalized. Oggier explains that his figures appear relatively low because the study deals only with the costs of drug use and preparatory activities, with a narrow interpretation given to the latter, thus excluding theft in support of a personal addiction. The majority of costs related to enforcement can be attributed to organized large-scale trafficking, and, according to Oggier, these costs would remain after decriminalization of consumption and preparatory activities.⁽[47]⁾

LEADING REPORTS FROM EXPERT COMMISSIONS THAT HAVE EXAMINED PROBLEMS RELATED TO DRUG USE IN SWITZERLAND

A. The Report of the Subcommission for Drug Issues of the Swiss Federal Narcotics Commission (1989)⁽[48]⁾

The subcommission report marked a turning point in Swiss drug policies and it is widely believed to be responsible for the introduction of the four-pillar approach and the adoption of harm reduction measures. Based on the results of studies conducted between 1983 and 1989, the report states that the most problematic aspects related to drug use had worsened since 1983, with drug trafficking reaching unexpected proportions. It was noted that law enforcement resources were concentrated on less serious cases, while there were clearly insufficient means to combat large-scale drug trafficking. Moreover, the spread of HIV and the AIDS epidemic required a re-evaluation of the government’s drug-related measures and priorities with respect to prevention and treatment as well as the strategies to combat consumption, production and trafficking.⁽[49]⁾ The report adopted a different approach [UNOFFICIAL TRANSLATION]:

In view of sociocultural conditions, both addiction prevention and treatment must provide for the best possible quality of life, while taking into account societal requirements. It must be stated unequivocally that this objective can never be fully realized, and is much less likely to be achieved through the exclusive use of legislative measures whatever form they may take.⁽[50]⁾

In order to meet this objective, the authors of the report put forward the following criteria:

· Permissiveness with respect to drugs should not be considered as an expression of societal indifference.

· Legislation related to addictive substances should target the prevention of addiction and its consequences and allow for treatment of drug addicts in cases where prevention has not been successful.

· Increased repressive measures should target mainly organized crime and lucrative drug trafficking.

· The fight against drug abuse and addiction should target the underlying causes, since penalizing the behaviour is ineffectual.⁽[51]⁾

Moreover, the authors made certain recommendations:

· For scientific reasons, the authors advocate that no distinction be made between the so-called “hard” and “soft” drugs. The differences in the dangers represented by these drugs can be expressed by stating the type of drug and the context in which it is used.⁽[52]⁾

· The authors were unanimous in recommending that no penalty be applied for drug use, should the law be revised. There should be no penalty for the use of any drug. Possession as well as the procurement of small quantities for personal use (such quantities being clearly defined) should also be free of any penalty. The majority of Commission members agreed that all types of drug trafficking should, however, remain illegal.⁽[53]⁾

· Stricter repressive measures should apply to illegal drug trafficking for profit – Set in place the necessary means for border control by increasing staff; create a drug police force within the Confederation; increase the means available for prosecution (undercover operations, confiscation of drug proceeds).⁽[54]⁾

· Develop the best possible conditions for treatment – Any revision to the Narcotics Act should reduce penalties for drug addicts who deal in drugs solely for the purpose of supporting their habit; the Act should be revised so as to give addicts, who are sufficiently motivated to seek help the option of moving from the criminal justice system to a treatment facility.⁽[55]⁾

· Measures relating to HIV – Possibilities for contact and consultation in the drug environment are essential; the eligibility threshold must be low enough to attract those who are not yet ready to give up their addiction. These services should be part of the treatment centres network. There must be enough walk-in facilities (including methadone treatment) and institutionalized care with sufficiently varied types of treatment. Suitable information relating to risks and transmission methods, as well as condoms and injection materials must be made available to drug addicts. After adequate psychological preparation, those who are at risk and are seeking treatment (addicts and their partners) must be encouraged to take an AIDS test. Additional training should be given to professionals and others who come in contact with drug addicts so as to enable them to give advice on problems related to HIV.⁽[56]⁾

· Distribution of replacement drugs for opiate addiction – There must be clearly established criteria for the substitution programs (mainly methadone), which can be recommended as a possible treatment for drug addiction. There is no new argument to justify recommending the distribution of heroin to drug addicts. Substitute drugs are not recommended for other types of addiction (for example, amphetamines, cocaine).⁽[57]⁾

· Encourage scientific research – Public health interests must be a priority. Preventive and therapeutic measures should be regularly evaluated. Routine data collection and research methods must allow for the best possible comparison of results. New research should emphasize preventive aspects (including AIDS prevention). Any future amendments to the legislation should include a framework to allow increased Confederation support for scientific research in the area of narcotics and drug addiction.⁽[58]⁾

Finally, with respect to cannabis, the authors of the report confirmed that it still was the illegal drug most used in Switzerland. They indicated, however, that cannabis causes few undesirable social consequences, and any such consequences are mainly prevalent among heavy users. They also pointed out that there is no proof that such consequences are directly related to the use of cannabis rather than the social reaction to its consumption.⁽[59]⁾ A minority among the members of the Commission felt that limited traffic in cannabis should be tolerated, so as to clearly distinguish between this substance and other narcotics that present greater potential danger to the user. With respect to repressive measures against cannabis users, the authors of the report felt that enforcement was often unfair and problematic from a legal point of view. Therefore, they recommended the decriminalization of the use of cannabis and all drugs, so that enforcement can concentrate on more serious cases, particularly large-scale trafficking for profit.⁽[60]⁾

In summary, the Subcommission for Drug Issues of the Federal Narcotics Commission put forward a harm reduction policy. This was reflected in a program of government public health measures aimed at reducing drug problems (ProMeDro) which became official in February 1991. However, the members of the Swiss Federal Office of Public Health were well aware that the drug issue remained a hot topic which required careful consideration before any hasty implementation of innovative programs. An awareness campaign began in November 1991, aimed at the general public as well as the government and related administrative units.^([61]) As we saw above, Switzerland’s drug policy changed significantly during the 1990s and harm reduction is now firmly established as part of it. Decriminalization of drug use, however, is a much harder concept to sell. A consensus is gradually being reached on decriminalization, as illustrated in the current revision of the Narcotics Act.

B. R eport of the Commission of Experts for Revision of the October 3, 1951 Federal Narcotics Act – schild Commission (February 1996)⁽[62]⁾

In November 1994, the Federal Department of Home Affairs gave a Commission of experts a mandate to present a report on the revision of the Narcotics Act. The Commission held sessions to gather information on the state of specialized knowledge, and it organized hearings on the medical prescription of narcotics and on custodial care, which were attended by Swiss and foreign experts. The Commission’s report began with an update on the drug situation. It pointed out that, at the time of the study (1994-1995), cannabis was still the most widely used illegal drug, and there were some 30,000 people addicted to “hard” drugs such as heroin and cocaine. From an epidemiological point of view, however, the Commission found that illegal drug use had remained nearly constant since 1990.^([63]) It also pointed out that there were many more problems associated with the use of legal products with addictive properties (medication, tobacco and alcohol) than with the use of illegal drugs. According to the Commission, it was difficult to justify making a distinction between legal and illegal drugs, at least from the perspective of health policy.^([64])

With regard to changes that had taken place in law enforcement since the 1975 revision of the Narcotics Act, the Commission found that the objectives of this revision – in particular, distinguishing between drug dealers and users – had not been reached. In other words, the majority of the charges laid under the legislation were still for drug consumption, mainly cannabis. Furthermore, only rarely (in 5% of cases) were measures such as in- or out-patient treatment imposed on offenders instead of penalties.^([65])

With regard to organized crime and drug trafficking, the Commission found that although law enforcement had improved considerably since the early 1990s, police forces nevertheless managed to seize only a tiny percentage of all drugs. The report also noted that although Switzerland did not attract organized crime because its market was small in relation to those of other countries, it was certainly attractive as a financial centre and clearing house for money laundering.^([66])

As for drug-related health and social problems, three phenomena had emerged in the years preceding the Commission’s study: the appearance of HIV infection, the appearance and expansion of places where people used drugs openly, and the poverty and markedly declining health of some addicts.^([67]) One of the Commission’s recommendations was that there should be legislation providing assistance for addicts.^([68]) It suggested that the main objectives of future drug policy should be to prevent dependency and its consequences, and to improve the health and social conditions of drug addicts. The Commission members were of the opinion that the four-pillar policy was a solid foundation for the future, but that improvements were possible and that targeted measures should be developed. The Commission expressed its approval of the set of measures defined by the Federal Council in 1991 to reduce drug-related problems (ProMeDro), but proposed improvements to this program.^([69])

As for restrictions on cannabis products, the Commission felt that from a public health point of view, cannabis use should be dealt with in the same way as alcohol use. However, the majority of the Commission members thought it inappropriate to treat cannabis products differently from the other drugs covered by the legislation (for example, to provide special regulations for trade in cannabis products, so that it could be grown for sale). They felt that too many questions remained unanswered and that Switzerland might come under strong international pressure if it partially or fully liberalized cannabis consumption. The Commission nevertheless felt that criminal sanctions should no longer be imposed for the consumption of illegal narcotics or for preparation for personal consumption.^([70])

The Commission made a number of recommendations for revision of the Narcotics Act, as well as some urgent recommendations for which no revision was required. The main ones are as follows:

· For reasons of health policy, drug use is an undesirable phenomenon, and the number of new users should be kept as low as possible. The Confederation, cantons and communes should be required to implement preventive measures. The Confederation should also be given a policy coordination role with a view to standardizing prevention strategies, and should adopt the necessary legal measures to ensure the funding of information and awareness campaigns.

· Drug addicts should have access to institutions offering harm reduction and coping skills programs, so that they can improve their health and living conditions. Legal measures should be put in place so that the Confederation can require cantons and communes to set up such institutions, and coordination should be handled by the Confederation. Financial incentives should be offered to the cantons and communes.

· Treatment that meets the specific needs of drug addicts should be available at in- and out-patient centres. There should be better cooperation between the various treatment programs, and drug addiction programs should be better integrated into the overall health and social assistance network. The Confederation should obtain the powers it requires to coordinate treatment programs, make recommendations on minimum standards and, if necessary, make available additional financial resources.

· If trials involving the medical prescription of narcotics yield positive results, this type of therapy should be included in the range of treatments. In this event, the Narcotics Act should be amended by removing heroin from the list non-prescribable substances. The Federal Council should also be given the authority to determine the general conditions applying to such prescriptions.

· The Confederation, in cooperation with the cantons, should ensure the establishment and application of clearly defined quality standards for assistance to drug addicts in the areas of prevention, treatment, harm reduction and coping skills.

· Given the rapid developments and new problems that are occurring, the Confederation should strengthen its efforts to encourage research in the area of drugs. A clear legal framework should be established and, most importantly, sufficient funds must be made available. The Narcotics Act should include a provision that would exempt the Federal Council from complying with the legislation under specific general conditions, in order to authorize trials.

· There is no longer any justification for the criminalization of drug consumption: it has no demonstrable effect on overall prevention, it hardly facilitates the infiltration of trafficking organizations, and it has negative effects from the point of view of health policy. It is also difficult to reconcile with the value system of the Swiss legal system. Canton policing laws are an effective tool for preventing the establishment of places where people use drugs openly. Therefore, the criminal provisions of the Narcotics Act should be reviewed, with the goal of decriminalizing drug consumption and preparation for consumption. This decriminalization should apply to all narcotics. The Commission did not recommend special treatment for cannabis products.

· Further study is needed to deal with the special situation of petty dealers who are also addicts. Consideration should be given to waiving a penalty where the illegality of the act or the guilt of the offender may be deemed minimal. Consideration should also be given to the possibility of temporarily suspending criminal proceedings to require treatment, and permanently suspending them after a trial period. There is also the question of whether it remains appropriate to link – as closely as is presently done – the severity of the penalty to the quantity of drugs involved.

· Work should be undertaken to develop a federal law regarding assistance for drug addicts. This law would cover all psychotropic substances and all types of measures, from prevention to the social reintegration of drug addicts.

· The fight against organized crime should be intensified.

· Standardization of criminal procedures at the canton level should be undertaken.^([71])

C. Federal Narcotics Commission’s Subcommission for Drug Issues:

Drug Policy Scenarios (June 1996)⁽[72]⁾

This report presents a broad range of possible scenarios in the area of drug policy, an analysis of their implementability in Switzerland and certain recommendations from the Commission’s Subcommission for Drug Issues. The report includes, among other things, a broad outline of three generic models based on different approaches in force in six cities and regions of western Europe: the treatment model, the social control model and the harm reduction model. Based on those three models and the two popular initiatives put forth in Switzerland in 1993, “Youth without drugs” and “DroLeg,” seven possible drug policy scenarios were developed:

· Drug policy from the medical treatment standpoint.

· Drug policy based on abstinence.

· Drug policy based on enforcement.

· Drug policy for a drug-free society.

· Drug policy based on reducing harm and minimizing damage.

· Legalization of drugs and state-controlled availability.

· Deregulation of drug trade and use.⁽[73]⁾

The two scenarios found to be extreme (enforcement and deregulation of trade and use) were set aside because, in the opinion of the Subcommission, they did not fit in with the objectives of society and users nor did they meet most of the criteria having to do with public health, social policy and the role of the state in Switzerland. The Subcommission was of the opinion that the harm reduction model was the best adapted to the Swiss situation which, considering the numerous social values and direct democracy, required a policy that could integrate different values and would be sufficiently flexible to react rapidly and effectively to change. The members of the Subcommission recommended unanimously the short-term development of a harm reduction policy integrating the positive elements of other scenarios. The Subcommission reaffirmed, as it did in its report published in 1989, the necessity of decriminalizing all narcotics consumption and preparation for consumption.⁽[74]⁾

As for the future orientation of drug policy in Switzerland, the members of the Subcommission did not reach a consensus. Considering that the negative effects of narcotics legislation and its implementation were probably more damaging than the drugs themselves, six of the ten members proposed drug legislation coupled with a system of differentiated access to the different products based on the dangerousness of the substances and the importance they have for certain groups in the population. All psychoactive substances, even the legal ones, should be taken into account. The Subcommission emphasized that such a model would involve the development of federal legislation on psychoactive substances which would replace the Narcotics Act. However, a minority of the Subcommission members were of the opinion that such legislation was out of the question because it would be incompatible with Switzerland’s international commitments and might lead to isolation and discrimination against the country. Moreover, some members feared that the legislation would lead to an increase in use and would attract drug tourists.⁽[75]⁾

Finally, it is interesting to note that as an appendix to the Subcommission’s report, there is an economic evaluation of the possible drug policy scenarios prepared at the Subcommission’s request. The following are the different hypotheses set out by the authors concerning the costing of a drug policy based on harm reduction and minimizing damage:⁽[76]⁾

Cost increase due to:

· increase in prevention;

· scientific monitoring of a broad range of therapies (in the case where follow-up and scientific evaluation would not be done on a permanent basis, these costs would appear only once);

· development of psychosocial and therapeutic management structures;

· coping skill measures, including custodial care;

· efforts at co-ordination between private institutions and government authorities.

Cost stability concerning:

· emergency medical care and measures;

· fighting organized crime dealing in illegal drugs.

Cost decrease concerning:

· use of illegal drugs which would be subject to less rigid enforcement;

· decrease of costs linked to mortality and morbidity.

Gains in terms of efficiency and social benefits:

· weakened black market (stemming from a rather liberal and flexible policy);

· consistent national policy implemented in a unified manner.

Comprehensive economic evaluation (including applicability):

· a priori, this policy would have an impact at the economic level through a substantial rise in expenditure. Responding to the drug problem through the use of both specific and well-targeted measures will actually increase fixed costs and investments. In the longer term, this approach might, however, lead to a decrease in costs if it were applied in a systematic and performance-oriented way;

· the increase of state subsidies to private aid institutions would require more financial input than is now provided;

· overall, costs tend to increase.

The authors of this economic evaluation also set out similar hypotheses for the six other scenarios presented by the subcommission and came to the conclusion that overall costs would tend to increase if Switzerland were to adopt one of the models based on medical treatment measures, abstinence, enforcement or the goal of a drug-free society. Only the “legalization of drugs and state-controlled availability” and the “deregulation of drug use and trade” would lead to a decrease in costs; the last option, according to the authors, being the most advantageous scenario and the most economically efficient.⁽[77]⁾

D. Cannabis Report by the Federal Commission for Drug Issues – (EKDF) (May 1999)⁽[78]⁾

The Federal Commission for Drug Issues was set up by the Federal Council in early 1997 to replace the Subcommission for Drug Issues of the Federal Narcotics Commission disbanded at the end of 1996. The Cannabis Report is a compilation of expertise in cannabis use and includes recommendations on the future treatment of cannabis when the federal Narcotics Act is revised. We are reminded of the conclusions of the reports of the Subcommission for Drug Issues (1989) and the Schild Commission (1996) which were in favour of decriminalization of narcotics consumption and preparation for consumption. The authors also point out certain initiatives, at the parliamentary or canton level, from 1992-1998, either calling for the decriminalization of the cultivation and use of cannabis (National Counsellor Vermot’s initiative, 1997), or submitting that cannabis products not be subject to the enforcement under the Narcotics Act (cantons of Basel-Campagne, 1997 and Zurich, 1998), or providing for the legalization of all narcotics (Solothurn canton, 1992). The Federal Commission also pointed out that between 1993 and 1998, the debate on the DroLeg initiative had drawn attention to the desire of part of the population to exempt cannabis from the full force of narcotics legislation. In such a context, a specific study on the matter of cannabis was necessary, particularly since cannabis production (agricultural and private) and distribution networks in the form of stores specializing in the sale of hemp products were to be found throughout the country, thus causing increasing confusion in the ranks of the Swiss population and especially its youth about the rationale, goals and implementation of the Narcotics Act.⁽[79]⁾

The report begins by presenting the situation in Switzerland and, as in the past, noted an increase in the use of cannabis. Among 15-year-olds, it reported the results of a study indicating that the percentage of youth in that age category having previously used cannabis had more than tripled since 1986 (from 2.5% in 1986 to 8.4% in 1998). As for the number of regular users of cannabis products, the percentage had increased from 2.9% in 1986 to 8.6% in 1998.⁽[80]⁾ It also pointed out that cannabis cultivation in Switzerland had greatly developed during the 1990s and that most of the crop was destined for the illegal market rather than the legal one (e.g. as a renewable raw material for textile production).⁽[81]⁾ According to an investigation in all cantons, hashish was mainly sold on the street while marijuana was being sold more and more through hemp shops as “aromatic pillows.” In 1999, there were some 135 hemp shops covering just about the entire country.⁽[82]⁾

The report deals with the pharmacology and toxicology of cannabis in a detailed fashion. It examines:

· the effects on the human body;

· the acute effects of cannabis on the central nervous system;

· the acute undesirable effects and toxicity of cannabis;

· cannabis and driving;

· the effects of chronic cannabis use;

· the amotivational syndrome;

· dependence and tolerance;

· the carcinogenic effect;

· the genetic effects and effects on reproduction and pregnancy;

· the effects on the immune system.

The nature of this document does not allow for a detailed presentation of the data concerning all those aspects. However, the following data will prove interesting:

· It is considered that the effect of cannabis does not depend only on its composition, dosage or mode of consumption but also on the user’s state of mind, expectations and the atmosphere at the time.

· Acute toxicity of cannabis is generally considered to be rare. A psychotic state may appear after use of high doses of cannabis. Reassurance is often enough to calm the person down.

· The ability to drive a motor vehicle is impaired for two to four hours (maximum eight hours) after using cannabis. Users often over-estimate the effect of cannabis on their ability to drive a motor vehicle and therefore concentrate more intensely and drive more slowly. It was also proven that in 80% of accidents where THC was found in the plasma of the responsible parties, their alcohol level was also positive.

· The “amotivational” syndrome, which entails personality change, neglect of one’s appearance and general disinterest displayed by habitual cannabis users, was never confirmed.

· The use of cannabis may lead to psychological dependence. The tendency towards physical dependence is, however, very low.

· It is advisable to abstain from cannabis, tobacco and alcohol use during pregnancy.

· The human immune system is relatively resistant to the immunosuppressive effects of cannabinoids and research results support the therapeutic use of delta 9 THC in patients whose immune system has already been weakened by other diseases (AIDS, cancer).⁽[83]⁾

As for the enforcement of the Narcotics Act, the Federal Commission noted that the reaction of the different cantons varied in the case of minor offences of cannabis dealing and use. The general trend in the courts, however, was to soften the penalties in cases where the offence was committed for personal use. In 10 of the 26 cantons, the police had adopted a differentiated practice, in that cannabis users were tolerated as opposed to users of other illegal substances. It was also pointed out that during the years 1991 and 1994, cannabis products were the substances most used, especially by teenagers (in 1991, in 95% and in 91% of decisions handed down against teenagers). In most judgments not resulting in a criminal record, a fine was the most usual penalty for cannabis use only, followed by reprimands and warnings.⁽[84]⁾

Finally, against the background of the notable enhancement of the public profile of cannabis and the resulting change in the perception of the issue and also in view of the lesser risks posed by cannabis, the Commission made recommendations that would give cannabis a separate status from illegal drugs. It suggested that the legal status of cannabis should be aligned more closely with that of legal psychoactive substances such as alcohol. The Commission was nevertheless of the view that under the terms of the international conventions to which Switzerland was a party, there was very limited scope for amending the drugs legislation. The Commission also felt it was not its function to assess the political importance of such conventions; its role was to propose appropriate models in light of all the information available to it. The Commission therefore proposed two solutions:

· the first, favoured by all members but incompatible with the 1961 Single Convention,was to make cannabis available legally;

· the second choice, capable of implementation within the ambit of the international conventions, was limited decriminalization.^([85])

Following detailed consideration of the different options, the Federal Commission unanimously recommends the elaboration of a model which not only removes the prohibition of consumption and possession but also makes it possible for cannabis to be purchased lawfully. The model should not be one of free availability but instead should include clear provisions for the protection of the young and the prevention of all the potential adverse consequences of legalization.

···

In the event that the legalization model proposed above should prove to be politically impracticable, the Commission proposes an alternative amendment of the Swiss Narcotics Act, which can be implemented within the constraints of existing international obligations. This would comprise:

· The repeal of the substantive offences of consumption and preparatory activities for personal consumption;

· The introduction of an expediency principle in relation to dealing, by means of the creation of a statutory basis in the Swiss Narcotics Act and the enactment of the relevant criminal justice provisions by way of an implementing ordinance.^([86])

REVISION OF THE FEDERAL NARCOTICS AND PSYCHOTROPIC SUBSTANCES ACT

The reports commissioned by the Federal Office of Public Health all agree that the situation has changed a great deal and that the problems associated with drug abuse and the illegal drug market have worsened since the 1975 revision of the federal Narcotics Act. Several reports pointed out an increase in the number of drug users and addicts, shortcomings in the areas of prevention and treatment, the deteriorating health of addicts with the advent of AIDS and, consequently, the need to invest more and more in harm reduction and coping strategies. In addition to these observed changes, there are other factors that justify a revision of the Narcotics Act, including the following:

· the federal decree allowing medical prescription of heroin for treatment purposes will expire at the end of 2004, and it calls for a revision of the Narcotics Act to place this type of treatment on the same legal footing as medical prescription of morphine and methadone for treatment purposes;

· doubts about whether cracking down on consumption has any deterrent effect on the decision to try or continue using a drug;

· recognition that cannabis is different from other narcotics such as heroin and cocaine in the way it is cultivated, processed and trafficked, as well as with respect to the effects associated with its use, which are less health-threatening than the effects associated with tobacco or alcohol addiction;

· differing practices in matters of criminal prosecution from one canton to another, depending on the human and financial resources of cantonal authorities and the priority given to dealing with offences under the Narcotics Act.^([87])

At the request of the Federal Council, the Federal Department of Home Affairs launched a consultation process for the revision of federal Narcotics Act in 1999. The consultation results were submitted to the Federal Council in October 2000, following which the Council gave the department the task of preparing changes to the legislation. The main features of these changes, as announced in the Federal Council’s message, are as follows:

· Introduction of the four-pillar approach in the legislation – The revised Act would have a new provision setting out the priority areas for measures under the federal drug policy:

§ prevention, therapy and social reintegration;

§ harm reduction and coping assistance;

§ control and enforcement.

This provision would also stipulate that: in applying the present Act, the Confederation and the cantons will give special consideration to the need to protect young people (draft legislation, Section 1(a)).

· Prevention and treatment of addiction-related problems – The legislation would have a broader scope in respect of preventive measures, therapy and harm reduction, regardless of the substance involved.

· Legal basis for heroin assisted treatment – This treatment would be allowed for therapeutic purposes, and heroin would be removed from the list of prohibited substances in the current Section 8 (see Appendix A, Section 8, para. 1(b) of the Narcotics Act).

· Protection for young people – The chief goal of the measures should be to safeguard young people from using and abusing addictive substances, by setting up early warning and intervention measures and strengthening preventive measures. Furthermore, drug consumption would be decriminalized for young people under 18 years of age, and stricter penalties would be put in place for people who provide drugs to minors under 16 years of age.

· Criminal provisions – The draft legislation would decriminalize cannabis consumption and preparation for consumption by removing the obligation to prosecute cannabis users. This decriminalization must, however, be accompanied by national information campaigns to convey the message that consumption of psychoactive substances is never without risk, as well as other preventive initiatives. In addition, a new section in the Act would introduce the principle that the Federal Council may set priorities for criminal prosecution (expediency principle). The restriction on the obligation to prosecute would apply to the consumption of drugs and to operations relating to cannabis derivatives.

· Confederation’s role – There would be a strengthening of the Confederation’s role in coordinating and supporting the measures taken by the cantons.^([88])

Most of these changes, if they were implemented, would have very little impact in practice because they reflect the current situation. General decriminalization of cannabis consumption and preparation for consumption could have a more significant impact, because this would lighten the workload of judicial authorities and would require the strengthening of preventive measures and the creation of tools for acting at an early stage where problems arise. Moreover, the draft legislation provides for the possibility of outlining conditions under which cantonal authorities would not be obliged to prosecute users of other drugs (for example, heroin and cocaine).^([89])

In Switzerland, creating legislation is a complex and lengthy process that lasts at least twelve months. The new legislation concerning narcotics and psychotropic substances completed the review stage in the fall of 2001. First, the Committee for Social Security and Public Health gave the text a preliminary review and then submitted it to the Council of States with its observations. The Committee approved the new legislation in November 2001, although it tightened up some of the points in the Federal Council’s proposal: it raised the age limit for buying cannabis from 16 to 18 and refused to extend the expediency principle to the enforcement of heroin and cocaine consumption. On December 12, 2001, the Council of States, by a vote of 32 to 8, adopted the bill as revised by the Committee for Social Security and Public Health. The next stage will be the review of the proposed legislation by the National Council. If the Council adopts the revised law, it will probably then be the subject of a referendum.

1990-2000 SUMMARY

Switzerland’s drug policy has evolved considerably in the last decade. There have been major changes in the perception of the issues and in the implementation of policy decisions, as well as in the impact of this drug policy, as verified by quantifiable data available for each of four pillars. Whereas in the mid-1980s drug addicts were largely viewed as marginalized people responsible for their own fate, today they are generally seen as ill, dependent people who are victims of a personal predisposition or outside circumstances. This new perception of the person with a drug dependency has given rise to a new approach based on social assistance and public health, rather than on enforcement and punishment. However, the enforcement approach was strengthened to deal with those who profit from drug trafficking. The four-pillar policy is intended to be a balanced, pragmatic approach that recognizes that drug problems cannot be completely solved, and that steps must be taken to mitigate the many effects of drug abuse and the illegal drug trade.^([90])

In the area of prevention, the programs supported by the Federal Office of Public Health have reached several hundred thousand young people since the early 1990s. As for therapeutic treatment, it is estimated that, out of a population of 30,000 hard-drug users, approximately 15,000 addicts are receiving some form of treatment – either in-patient treatment based on abstinence with methadone or heroin prescribed, or out-patient treatment. There has been an increase in harm reduction programs, which help improve the physical and mental health of drug addicts, as well as their quality of life. For example, injection drug users made up between 36 and 40 per cent of new HIV cases in 1991, whereas in 1999, they accounted for only between 14 and 17 per cent of HIV cases. Similarly, the number of deaths attributable to a drug overdose (usually heroin) dropped from 405 in 1991 to 181 in 1999. As for deaths attributable to AIDS among injection drug users, the figures show a substantial decline, from 318 deaths in 1994 to 196 in 1996.^([91]) Lastly, enforcement has been stepped up, with the number of charges for offences under the Narcotics Act rising from 23,400 in 1991 to 44,336^([92]) in 1999. The majority of these charges involved consumption of drugs. New measures have also been introduced to all police forces to deal more effectively with drug trafficking and money laundering.^([93])

The Federal Office of Public Health recognizes, however, that:

Despite the successes that Switzerland has achieved, the drug problem remains a real one and there is no doubt that, in the future, we will have to continue to invest considerable resources to consolidate our achievements and make additional progress.^([94])
[UNOFFICIAL TRANSLATION]

([1]) The information contained in this section can be found on-line at

http://www.parlament.ch/poly/Framesets/F/Frame-F.htm.

([2]) This term refers to the Swiss Federation.

([3]) Yann Boggio, Sandro Cattacin, Maria Luisa Cesoni and Barbara Lucas, Apprendre à gérer : La politique suisse en matière de drogue [Learning to manage: the Swiss drug policy], Geneva, Georg. 1997.

([4]) Ibid., page 38.

([5]) Swiss Federal Office of Public Health, The Swiss Drug Policy, September 2000, available on-line in French at http://www.bag.admin.ch/sucht/f/index.htm.

([6]) Ibid., pp. 8-9.

([7]) Swiss Federal Office of Public Health, Mesures fédérales pour réduire les problèmes de la drogue [Federal measures to reduce drug problems], Main Reference Document of the Swiss Federal Office of Public Health, Decision of the Federal Council dated 20 February 1991, Doc. No. 3.4.1f.

([8]) The acronym “MaPaDro” was used to refer to the program of federal measures for the period 1990-1996. The acronym “ProMeDro” is used to refer to the program of federal measures for the period 1997-2002. To avoid confusion “ProMeDro” is used throughout this document.

([9]) Swiss Federal Office of Public Health, Programme de mesures de santé publique de la Confédération en vue de réduire les problèmes de drogue [Confederation public health program to reduce drug problems] (ProMeDro) 1998-2002, October 1998.

([10]) Swiss Federal Office of Public Health, Mesures fédérales pour réduire les problèmes de la drogue, [Federal Measures to reduce drug problems], 1991.

([11]) Marcelo F. Aebi, Martin Killias and Denis Ribeau, “Prescription médicale de stupéfiants et délinquance : Résultats des essais suisses,” [Medical prescription of narcotics and delinquency: the Swiss experience], Criminologie, Vol. 32, No. 2, 1999, p. 127-148.

([12]) For more information on this initiative, go to the Youth Without Drugs Web site (in French) at http://www.jod.ch/f_fr_index.htm.

([13]) For more information on this initiative, please visit DroLeg’s Web site at www.droleg.ch.

([14]) Supra, note 5, p. 10.

([15]) Supra, note 3, pp. 75-80.

([16]) Supra, note 9, p. 5.

([17]) The EMCDDA co-ordinates a network of 15 information centres, or national focal points, located in each of the member states. For more information, visit the EMCDDA Web site at http://www.emcdda.org/partners/reitox.shtml.

([18]) The Conference of Canton Delegates usually meets four times every year. It co-ordinates drug addiction measures, establishes an annual program and priority catalogue, ensures the exchange of information, debates and adopts positions and responds to consultations, defines and discusses related issues and provides development sessions. See http://www.infoset.ch/inst/kkbs/f-statuten.html (in French). The national committee is comprised of representatives from the cities, the cantons and the Confederation. Its role is to provide follow-up on the implemented measures and ensure that these measures are harmonized.

([19]) Supra, note 9, pp. 6-7.

([20]) Supra, note 5, p. 15.

([21]) Ibid.

([22]) Ibid., p. 16.

([23]) Ibid., pp. 16-17.

([24]) Swiss Federal Office of Public Health, The Swiss drug policy: A fourfold approach with special consideration of the medical prescription of narcotics, March 1999, p. 7.

([25]) Supra, note 5, p. 19.

([26]) Ibid., pp. 18-19.

([27]) Ibid., pp. 20-21.

([28]) Ibid., p. 21.

([29]) Swiss Federal Council, Message concernant la révision de la loi sur les stupéfiants [Message re: Revision of the Narcotics Act], March 9, 2001.

([30]) Loi fédérale sur les stupéfiants et les substances psychotropesdu 3 octobre 1951[Federal Narcotic and Psychotropic Substances Act of October 3, 1951] (as at November 27, 2001), available on-line in French at http://www.admin.ch/ch/f/rs/812_121/index.html#fn1. Pertinent sections of the Act are included in appendix A.

([31]) Newly named therapeutic products agency, in existence since January 1, 2002.

([32]) Federal court, L’organisation judiciaire en Suisse [Swiss Court System], available on-line in French at

http://www.bger.ch/index.cfm?language=french&area=Federal&theme=system&page=content&maskid=195.

([33]) Federal Office of Police, Un aperçu de l’OFP [FOP Overview], available on-line in French at

http://www.bap.admin.ch/f/index.htm.

([34]) Federal Office of Police, Exploitation définitive de la banque de données en matière de drogue DOSIS [Permanent operation of DOSIS drug database], June 26, 1999, available on-line in French at http://www.bap.admin.ch/f/index.htm.

([35]) Federal Office of Police, Situation Suisse : Rapport de Situation 2000 [2000 Situation Report on Switzerland], Analysis and Prevention Service, 2001, available on-line in French at http://www.bap.admin.ch/f/index.htm.

([36]) Ibid., p. 7.

([37]) According to a Federal Office of Police press release, Thai pills contain methamphetamine, and their structure closely resembles that of ecstasy. They come from Thailand, where they go by the name “Yaba” (drug that makes you go crazy). The tablets bear the letters “WY” and smell like vanilla. The substance is usually smoked, using a sheet of aluminum, or absorbed. The risk of addiction among people absorbing the product by smoking it is at least three times greater than among ecstasy users. This drug is a powerful stimulant with effects comparable to those of crack, but longer lasting. Taking these pills may result in irreparable physical and mental damage (loss of memory, depression). It may also cause paranoid hallucination and violent fits and create psychological dependence faster than ecstasy.

([38]) Supra, note 35, pp. 17-37.

([39]) In French “délits mixtes.”

([40]) Supra, note 35, pp. 18-19.

([41]) Ibid., pp. 20-23.

([42]) Ibid., pp. 20-27.

([43]) Ibid., pp. 27-30.

([44]) Ibid., pp. 31-32.

([45]) Ibid., pp. 33-36.

([46]) Swiss Federal Office of Public Health, Facts and figures on the drug problem, available on-line at http://www.bag.admin.ch/sucht/epi/e/facts.htm.

([47]) Willy Oggier, Coûts de la pénalisation de la consommation de stupéfiants et de ses actes préparatoires – Résumé [Costs of enforcement for drug use and preparatory activities – Summary], April 1999, available on-line in French at

http://www.infoset.ch/f/actualite/revision/990423_Oggier.htm.

([48]) Subcommission for Drug Issues of the Federal Narcotics Commission, Aspects de la situation et de la politique en matière de drogue en Suisse : Rapport de la Sous-commission « drogue » de la Commission fédérale des stupéfiants [Aspects of the drug situation and policy in Switzerland: Report of the Subcommission for Drug Issues of the Federal Narcotics Commission], Swiss Federal Office of Public Health , Bern, June 1989.

([49]) Ibid., p. 1.

([50]) Ibid., p. 2.

([51]) Ibid., pp. 2-3.

([52]) Ibid.,p. 55.

([53]) Ibid., p. 78.

([54]) Ibid., p. 83.

([55]) Ibid., pp. 5-6.

([56]) Ibid., pp. 92-93.

([57]) Ibid., pp. 100-102.

([58]) Ibid., p. 106.

([59]) Ibid., p. 50.

([60]) Ibid., p. 78-79.

([61]) Supra, note 3, p. 59.

([62]) Commission of experts for revision of the federal Narcotics Act of October 3, 1951, Rapport de la Commission d’experts pour la révision de la loi fédérale du 3 octobre 1951 sur les stupéfiants à l’attention de la chef du Département fédéral de l’intérieur [Report of the Commission of Experts for Revision of the federal Narcotics Act of october 3, 1951, submitted to the Head of the Federal Department of Home Affairs], Federal Office of Public Health, Bern, February 1996.

([63]) Ibid., p. 9.

([64]) Ibid., p. 24.

([65]) Ibid., p. 10.

([66]) Ibid., p. 20.

([67]) Ibid., p. 11.

([68]) Ibid., p. 25.

([69]) Ibid.,p. 30.

([70]) Ibid., pp. 54-57.

([71]) Ibid., pp. 69-71.

([72]) Federal Narcotics Commission’s Subcommission for Drug Issues, Scénario pour une politique de la drogue [Drug policy scenarios], Federal Office of Public Health, June 1996.

([73]) Ibid., p. 4.

([74]) Ibid., p. 5.

([75]) Ibid., p. 6.

([76]) Ibid., pp. 70-71.

([77]) Ibid., pp. 67-72.

([78]) Swiss Federal Commission for Drug Issues, Cannabis Report, Federal Office of Public Health, Bern, May 1999, available on-line at http://www.bag.admin.ch/sucht/politik/drogen/revbetmg/cannabise.pdf

([79]) Ibid., pp. 5-8.

([80]) Ibid., p. 12.

([81]) Ibid., p. 16.

([82]) Ibid., p. 17.

([83]) Ibid., pp. 19-24.

([84]) Ibid., pp. 43-44.

([85]) Ibid., p. 105.

([86]) Ibid., p. 106.

([87]) Supra, note 29.

([88]) Ibid.

([89]) Federal Office of Public Health, Le Conseil fédéral approuve le message relatif à la révision de la loi sur les stupéfiants (L Stup) : Innovations dans le domaine du cannabis. [Federal Council endorses message regarding revision of Narcotics Act: Innovations concerning cannabis] March 9, 2001, available on-line in French at http://www.bag.admin.ch/dienste/medien/2001/f/01030903.htm.

([90]) Supra, note 5, pp. 28-29.

([91]) Supra, note 46.

([92]) This number is slightly different than the number of charges presented on p. 17 (3,711) as the source is different. However, in both cases, an important increase in the number of charges is observed between 1991 and 1999.

([93]) Supra., note 5.

([94]) Ibid.

Illegal Drugs (Special)