Compensatory claim for drug trafficking: exclusion of personal consumption and absence of joint liability among co-perpetrators

Facts

In August and September 1990, the defendant participated in a cocaine trafficking operation with two accomplices, G. and T.. She invested 35,000 francs (including 25,000 borrowed) to purchase 300 g of cocaine initially, then reinvested the profits in further operations. The trio made a gross profit of approximately 80,000 francs. The defendant withdrew 4,176 francs for herself and consumed 22 g of cocaine. She also incurred a debt of 25,000 francs to finance the operation.

By judgment of 30 March 1992, the Criminal Court of the District of Lausanne sentenced her to 16 months’ suspended imprisonment and a compensatory claim of 5,000 francs payable to the State. The Cantonal Court of Cassation upheld this decision on 26 October 1992. The defendant filed an appeal in nullity with the Federal Supreme Court, contesting solely the compensatory claim.

Considerations

The Federal Supreme Court first recalls that an appeal in nullity is strictly cassatory and may only concern violations of federal law. It is bound by the factual findings of the cantonal authority, unless there is a manifest error. In this case, the defendant challenges only the compensatory claim, which limits the Federal Supreme Court’s review to this issue.

On the merits, the Federal Supreme Court recalls that the compensatory claim (Art. 58 para. 4 SCC) is intended to prevent an offender from deriving an illicit financial benefit. It does not constitute compensation for damage but serves as a substitute for in-kind confiscation when the objects or values have disappeared. Unlike civil liability (Art. 50 para. 1 CO), there is no joint liability among co-perpetrators for this claim. Each participant is liable only for the share of illicit benefit they personally received or retained.

The Federal Supreme Court further clarifies that personal consumption of drugs does not constitute an illicit financial benefit. The drugs purchased and consumed by the defendant did not improve her financial situation, as she provided the economic equivalent at the time of purchase. The compensatory claim cannot therefore be calculated on this basis. However, the amount of 4,176 francs withdrawn by the defendant from sales must be taken into account, as it represents a concrete illicit benefit. The compensatory claim of 5,000 francs set by the cantonal authorities is therefore excessive…