A 33-year-old Swiss man was convicted of drug-related offenses. He has now successfully sued against the imposition of the costs of clearing his indoor hemp facility.
The authorities should have informed the accused earlier that the clearance of his hemp facility would cost something.
A layperson would probably take it for granted that a person convicted of drug offenses has to pay the costs of clearing his illegal indoor cannabis facility himself.
However, negligence on the part of authorities in the jungle of legal proceedings can lead to decisions that do not really correspond to the average citizen’s sense of justice, as a new ruling by the High Court shows.
On January 11, 2023, the Dietikon District Court found a Swiss man, now 33, guilty of multiple offenses and multiple violations of the Narcotics Act. He was ordered to pay the costs of the investigation of CHF 2,100 and the legal proceedings of CHF 1,500. The judgment became final and binding.
Five days later, on January 16, 2023, a company commissioned to clear and destroy the accused’s indoor hemp facility sent the Dietikon District Court an invoice for CHF 11,084 and 85 centimes for the same. However, the clearance had already taken place in May 2022.
On May 25, 2023, the Dietikon District Court issued a further judgment as an addendum to the judgment of January 11, 2023, and imposed on the accused the eviction costs in addition to the costs already charged to him in January. He was also required to pay the decision fee of 600 francs for the additional new decision.
Lack of reservation in the first judgment
The accused appealed against this supplementary judgment. The public prosecutor’s office requested its confirmation. The higher court then conducted the further proceedings – as is usual in such cases – in writing without an oral hearing. It has now published its decision.
In his grounds for appeal, however, the accused argued that the judgment of the Dietikon District Court of January 2023 had made a final decision on the procedural costs and waived any reservation for subsequent costs. These cost consequences are final and cannot be corrected in the context of an independent subsequent decision.
The costs associated with the clearance of the hemp facility in May 2022 were obviously already known before the verdict in January 2023 or should have already been known if the prosecution costs had been carefully reviewed. It would therefore have been easy for the prosecution authorities to rule on these clearance costs in the first instance verdict or at least to reserve a later claim against the accused.
The supplementary judgment of May 25, 2023 lacks a legal basis, according to the appellant. It should therefore be overturned. His defense also argued that the costs of the eviction were compensation to third parties. It would have been entirely reasonable for the company to assert its claim after the eviction. And it would have been the public prosecutor’s job to inform the company of its right to compensation.
Subsequent correction not in accordance with the law
In its ruling, the Higher Court now comes to the conclusion that the accused, in good faith, did not have to expect additional costs in the amount imposed on him by the lower court, particularly due to the lack of reservation following the ruling of January 11, 2023. Such clearance work would usually be carried out by the police and taken into account in the setting of fees or additional police expenses.
The subsequent costs of disposal of the indoor hemp facility by the third-party company could therefore not be imposed on the accused and should therefore be borne by the court.
The state will now pay the 11,000 francs. The court fee of 600 francs for the May 2023 decision and the official defense’s compensation for the appeal proceedings in the amount of 1,614 francs and 70 centimes will also be paid into the court’s coffers.
Judgment SB230388 of June 21, 2024, not yet final.
