The German Federal Constitutional Court's Cannabis Decision

BVerfGE 90, 145
-- 2 BvL 43, 51, 63, 64, 70, 80/92, 2 BvR 2031/92 --

In the "Cannabis Decision," BVerfGE 90, 145, the Bundesverfassungsgericht (Federal Constitutional Court), considered a constitutional challenge to Germany's Narcotics Act (BtMG) as it applied to marijuana and hashish. The case came to the Court from Lübeck, where the appellate court used a procedure available under the Basic Law (Art. 100) to certify questions regarding the constitutionality of statutes to the Bundesverfassungsgericht for decision1.

The Lower Court's Decision

The lower court held the criminal prohibition of trafficking in cannabis products to violate two provisions of the German constitution. First, the court held that the prohibition of cannabis violated the principle of proportionality, which requires that state action be suitable and necessary in order to achieve the government's legitimate aim, and that it not be excessive when compared with that aim. Criminal prohibition of an activity is the ultima ratio - the means of last resort - which should only be considered when no other measure appears suitable to achieve the legislative purpose.The lower court held that the prohibition of cannabis did not meet this standard, based on substantial evidence that:
[...I]t had not been proven that the consumption of cannabis causes physical damage to any relevant degree. While smoking cannabis may cause lung damage, the damage caused by smoking cannabis was not as substantial as that caused by smoking tobacco products, and, since hashish could be consumed in other ways, could not be considered a specific risk associated with the consumption of cannabis. There was no known lethal dose of the drug. The use of cannabis could not even cause physical dependency. There was no current evidence for degeneration of cerebral function and intelligence secondary to chronic use of cannabis. Therefore, in the view of the court below, the psychological consequences of cannabis were de minimis. The so-called "amotivational syndrome" was not a specific consequence of cannabis use. At the worst, there might be the possibility that the use of the drug could lead to a mild psychological dependency. The social repercussions of cannabis use were not as severe as those of alcohol use. In particular, the expert opinion obtained by the Criminal Division concluded that hashish was not a "gateway drug" for harder drugs, and did not lead to gradually increasing use.
BVerfGE 90, 145 (151-52).

Similar reasoning led the lower court to hold that it violated the German Basic Law's equal protection clause, because the legislature had made legal the consumption and distribution of alcohol and tobacco products, despite their being more dangerous than cannabis products (which were subject to a criminal prohibition). The statute was also challenged as violative of Art. 2 GG's2 right to free development of the personality.

The Decision of the Bundesverfassungsgericht

The BVerfG disagreed. Turning first to the issue of "free development of the personality," the Court held that:
Art. 2 ¶ 1 GG protects every form of human activity, without regard to the degree of importance of any particular activity for the development of the personality (cf. BVerfGE 80, 137 [152]). However, absolute protection from the intervention of the public authority is enjoyed only by the core area of private life choices (cf. BVerfGE 6, 32 [41]; 54, 143 [146]; 80, 137 [153]). Due to its various social repercussions and interactions, the use of drugs, and the act of intoxicating oneself in particular, cannot be considered part of that core area. Moreover, the general freedom of action is only guaranteed subject to the limitations set forth in the second clause of Art. 2 ¶ 1 GG; it is thus subject to the limitations necessary to protect the constitutional order (cf. BVerfGE 80, 137 [153]).
BVerfGE 90, 145 (170). Since the right to freedom of action and free personality development was subject to broad limiting language ("to the extent that it does not violate the rights of others or the constitutional order or public morality"), the Court held that the freedom of action could be limited by any otherwise constitutionally acceptable statute. The only limit to the legislature's ability to limit the individual's freedom of action, according to the Court, is the constitutional requirement that state intervention into the sphere of individual rights be proportionate.

While the principle of proportionality was of "heightened importance" when evaluating a statute - such as this one - that carried the penalty of imprisonment for violations, BVerfGE 90, 145 (172), the Bundestag is entitled to particular deference when determining what conduct should be made criminal.
The Federal Constitutional Court may not review whether the decision [of the legislature] was the most efficacious, rational, or just solution; the Court's task is to ensure that the criminal statute is substantively compatible with the provisions of the constitution and the unwritten constitutional principles, as well as the basic value decisions of the Basic Law (cf. BVerfGE 80, 244 [255] with other citations).

Id. The Court held that the provisions of the Narcotics Act punishing traffic in cannabis did not on their face violate the principle of proportionality, because both the BtMG and the Rules of Criminal Procedure do not require the government to prosecute anyone who is using a "small amount" (geringe Menge) of cannabis for personal consumption without endangering others (e.g. youth, soldiers, and others who may be tempted to imitate the behaviour), and emphasised that law enforcement should generally err on the side of not prosecuting small-time marijuana posesssors. In response to the equal protection argument, the Court noted that the legislature may distinguish between potentially damaging substances, and is not required to prohibit the lot of them or none at all; particularly given the tradition of using alcohol and tobacco in Europe, the Court felt that the legislature could permissibly reject as unrealistic the idea of prohibiting alcohol or tobacco.

Ultimately, the effect of the Court's decision has been to create a system in which cannabis has been de facto decriminalised. While each State has its own rules about what constitutes a "small amount" and is presumed to be for "personal consumption," there is, in reality, very little attempt to prosecute people for cannabis possession, sale, or distribution. In general, if a person has less than 6 g (more in some states) of any cannabis product, the most the police can do is confiscate it.

1 Art. 100 ¶ 1 GG: If a court holds a law, the validity of which is dispositive of the matter before it, it shall suspend the proceedings, and, if the law at issue is believed to violate a State constitution, shall certify the question to the State court having subject-matter jurisdiction over constitutional questions; if the law at issue is believed to violate this Basic Law, the court shall certify the question to the Federal Constitutional Court. The same procedure shall be followed if an issue arises as to the violation of this Basic Law by State law or the incompatibility of a State law with a Federal law.
2 Art. 2 GG: (1) Everyone has the right to free development of his personality, to the extent that it does not violate the rights of others or the constitutional order or public morality.

(2) Everyone has the right to life and bodily integrity. The freedom of the person is inviolate. These rights may only be abridged pursuant to law.


1. a) In dealing with drugs, the limitations set forth in Art. 2 ¶ 1 GG (Grundgesetz, Basic Law) apply. There is no "right to intoxication" that is not subject to these limitations.

b) The criminal prohibitions in the criminal provisions of the Betäubungsmittelgesetz (Narcotics Act, BtmG), which make punishable the unlawful traffic in cannabis products, must meet the standards of Art. 2 ¶ 1 Sent. 1 GG.

2. a) The legislature's determinations with regard to the necessity and suitability of the chosen means to achieve the legislative purpose as required by the principle of proportionality, as well as its estimation and prognosis of the dangers to the individual or society as a whole in this context, is entitled to deference, and are subject only to limited judicial review.

b) In balancing the severity of the state intervention and the weight and urgency of the grounds adduced to justify it, the intervention must not be permitted to go beyond what may constitutionally be imposed on the addressees of the prohibition (Übermaßverbot or proportionality in the narrower sense). The result of this balancing test may be that a means of protecting a legal interest (Rechtsgut) that is, in and of itself, suitable and necessary, may not be applied because it operates to undermine the fundamental rights (Grundrechte) of affected individuals to a degree that outweighs the increased protection of the legal interest, such that the application of the means of protection would be inappropriate.

3. To the extent that the criminal provisions of the Narcotics Act make punishable conduct that exclusively concerns the preparation of small amounts of cannabis products for occasional personal consumption and does not endanger others, they do not violate the prohibition of excess because the legislature has permitted law enforcement agencies to take into account de minimis levels of individual culpability and unlawfulness by declining to punish (cf. § 29 ¶ 5 BtMG) or prosecute (cf. §§ 153 et seq. Rules of Criminal Procedure [Strafprozessordnung - StPO]). In such cases, the prohibition of excess generally requires the law enforcement agencies not to investigate or prosecute the offences enumerated in § 31a BtMG.

4. The equal protection clause does not require the legislature to prohibit or permit equally all potentially equally damaging drugs. It is permissible for the legislature to enact different laws for cannabis products on the one hand and alcohol or nicotine on the other.

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