Facts
On May 4, 2004, the investigating magistrate 3 of the Investigating Magistrate's Office IV Berner Oberland initiated criminal proceedings against X. and Y., partners and managing directors of [Z. GmbH], for commercial violation of the Narcotics Act. During a house search, approximately 62,000 cannabis cuttings and 804 cannabis mother plants were confiscated. The investigating magistrate ordered the premature destruction of the cannabis plants by the cantonal police. X. and [Z. GmbH] filed a constitutional appeal against this.Considerations
The Federal Court decided that the destruction of the confiscated cannabis plants constitutes a serious infringement of the guarantee of property ownership and requires a clear and unambiguous legal basis in a formal law. However, the destruction ordered by the investigating magistrate was based solely on Art. 145 CCP/BE, which regulates the "premature realization" of confiscated items. The Federal Court found that destruction is something fundamentally different from premature realization and therefore cannot be based on Art. 145 CCP/BE.
While in cases like the present one, there may be an interest in destroying confiscated cannabis plants as quickly as possible to avoid costly police controls…