Facts
The case concerns an individual, W., who sold Tonopan to a third party by passing it off as heroin and acted as an intermediary for the sale of heroin and cocaine to various people in order to finance his own use. The Bern Criminal Court sentenced him to four months in prison for fraud, repeated and continued violation of Article 19a of the NarcA, as well as for other offenses.
The Bern Cantonal Court of Appeal, upon appeal by the public prosecutor of the Mittelland district, sentenced W. to 13 months in prison for fraud, repeated and continued violation of Article 19, paragraphs 1 and 2, and Article 19a of the NarcA, as well as for other offenses.
W. filed a appeal to the Federal Court, requesting the annulment of the judgment of the Court of Appeal with regard to the conviction for a qualified offense under the NarcA and the determination of the sentence, as well as the referral of the case back to the lower court so that the offenses under the NarcA could be qualified as privileged offenses under Article 19a of the NarcA.
Considerations
The Federal Court rejected the appeal. The court considered that W.'s activity of putting potential buyers and drug dealers in contact with the hope of ensuring his own consumption through the commissions in kind he received on future transactions constituted a brokerage offense within the meaning of Article 19, paragraph 1, subparagraph 4, of the NarcA.
The court also considered that the privileged treatment provided for in Article 19a of the NarcA only applies to acts exclusively intended to ensure the personal consumption of the author and which, consequently, exclude any endangerment of third parties. Acts that lead or may concretely lead to the consumption of third parties, such as sale, brokerage or related storage, do not benefit from such treatment.
The Federal Court estimated…