Facts

Parties and procedural history:

The complainant, a man born on 4 March 1995, was convicted by the Zurich District Court on 21 August 2018 of an offence against the Narcotics Act (NarcA). He was accused of having sold one gram of cocaine each to [A.] twice in January and February 2017 and at least five times one gram of cocaine each to [B.] , as well as having purchased 47.4 grams of cocaine with a purity of 67% on 2 March 2017. The latter was to be distributed to guests at his birthday party, with a small portion intended for his own consumption. The District Court sentenced him to an unconditional custodial sentence of 18 months and extended the probation period of an earlier suspended fine by one and a half years. In addition, a five-year expulsion from Switzerland was ordered, which was registered in the Schengen Information System (SIS).

The Higher Court of the Canton of Zurich upheld this judgment on 21 August 2018 on appeal by the complainant. He then filed a criminal appeal with the Federal Supreme Court and requested his acquittal or at least a referral back to the lower court for re-assessment. He also applied for free legal aid.

Details of the facts:

On 2 March 2017 at around 8:20 p.m., the complainant was stopped by the Zurich City Police at Escher-Wyss-Platz, a location known for increased drug-related crime. During an identity check, he was searched by patting him down over his clothes (frisking), during which 48.7 grams of a cocaine mixture were found in his underwear. The complainant stated that he had possessed the cocaine for consumption at his birthday party. The police documented the check and search in an arrest report and a search protocol. The seized drug was later formally confiscated.

The complainant criticised in his appeal, in particular, the lawfulness of the police identity check and search, the violation of the principle of prosecution, the assessment of evidence by the lower courts, the refusal of a suspended sentence and the ordering of expulsion.

Considerations

1. Lawfulness of the police identity check and search:

The complainant argued that the police stop and search on 2 March 2017 had not been justified by sufficient grounds for suspicion. The Federal Supreme Court held that for a police stop under Art. 215 CrimPC, no concrete suspicion of an offence is required, but a vague suspicion suffices, provided that in the specific situation a connection between the person stopped and an offence appears possible. Such a suspicion existed here, as the complainant was found at a known drug dealing location (Escher-Wyss-Platz) and the police recognised him as a drug dealer. Moreover, he refused to hand over the drug, which justified a search. The search was also proportionate and documented, so that the evidence was admissible.

2. Violation of the principle of prosecution:

The complainant alleged that the indictment suffered from internal contradictions, as it included various counts (main and alternative counts) that contradicted each other in objective and subjective terms. The Federal Supreme Court clarified that the principle of prosecution (Art. 9 para. 1 and Art. 325 CrimPC) does require a precise description of the alleged offence in order to safeguard the rights of the defence. However, alternative counts are legally provided for (Art. 325 para. 2 CrimPC) and serve to take account of uncertainties regarding the exact course of events. The lower court had correctly divided the indictment into main and alternative counts, without violating the principle of prosecution.

3. Assessment of evidence and application of Art. 19b NarcA:

The complainant argued that the lower courts had wrongly failed to take into account his statement that only 20 grams of the cocaine were intended for guests. The Federal Supreme Court held that the lower courts had assessed the complainant’s statements as tactically adjusted, as he had only made statements regarding the intended use late in the proceedings. Moreover, it was unusual for a person dependent on social welfare to possess such a large quantity of drugs in stock. The lower courts assessed the evidence without arbitrariness and applied the principle “in dubio pro reo”. The application of Art. 19b NarcA (impunity for the gratuitous distribution of small quantities) failed because the total quantity distributed (48.7 grams) was not considered minor and the drug was mainly intended for third parties. Moreover, Art. 19b NarcA does not regulate the acquisition and possession of larger quantities.

4. Suspended sentence and expulsion:

The complainant challenged the refusal of a suspended sentence and the ordering of expulsion. The Federal…