Facts
In March 1997, an investigation was opened against Françoise X. and her husband Pierre X. for an offense against the Swiss Federal Act on Narcotics and Psychotropic Substances (Betäubungsmittelgesetz, BetmG). This investigation followed the interception by Swiss customs of a postal package from Amsterdam, addressed to Françoise X.'s company, containing sachets of cannabis seeds. An expert analysis established that these seeds were suitable for the production of cannabis containing significant quantities of tetrahydrocannabinol (THC).
As part of this investigation, the examining magistrate ordered the seizure of more than one kilogram of cannabis seeds, confiscated during a search of the X. couple's residence. A supplementary expert analysis revealed that these seeds contained little or no trace of cannabinoids, but that they could be cultivated for the production of plants with a high THC content.
At the end of the investigation, the examining magistrate dismissed the case against the X. couple, considering that it had not been established that they had imported these seeds for the purpose of producing or selling narcotics. However, he ordered the confiscation and destruction of the seized cannabis seeds, pursuant to Art. 58 of the Swiss Criminal Code (Strafgesetzbuch, StGB).
Considerations
The appellant, Françoise X., filed a nullity appeal with the Federal Supreme Court, alleging a violation of Art. 58 StGB.
The Federal Supreme Court dismissed the appeal to the extent that it was admissible. It considered that, although no offense had been committed, the disputed seeds had to serve to commit an offense within the meaning of Art. 58 StGB, as there was a serious risk that they would be used for the production of narcotics. The cantonal authority had indeed found that the appellant had…