Basic Rights, Bundestag, Constitutional Law, Criminal Law, Federal Constitutional Court

A “Justice Offensive” to Legalize Marijuana in Germany

Vergrößerte Ansicht des angeklickten Bildes
A 2700-plant indoor cannabis plantation discovered in the middle of Düsseldorf in 2016. [Source]
The German Hemp Federation (GHF), a German marijuana-legalization lobby, has started what it calls a “justice offensive” (g) to convince the German Federal Constitutional Court (FCC) to declare laws against marijuana unconstitutional.

The current state of play in Germany is that it is illegal nationwide, under § 29 (g) of the Narcotics Law, to possess or sell cannabis without a license or prescription. However, most German states have established an unofficial “toleration limit” (Duldungsgrenze) for cannabis possession. In my state, for example, the limit is 10 grams. If you’re caught with fewer than 10 grams, this will generally be considered a “small amount” for “personal use”, and the prosecution will decline to press charges — although this is only an informal policy, not a formal requirement. You can still end up being convicted (g) even if you possess an amount under the toleration limit.

So marijuana remains illegal, but nobody takes the prohibition very seriously. Large marijuana plantations or shipments will still be seized and destroyed, but you don’t have to worry about the joints in your pocket. Most Germans consider this a pretty reasonable compromise. However, there’s plenty of political momentum for completely decriminalizing cannabis in some German states and cities; Düsseldorf (g) has even toyed with the idea. The problem is that drug policy is made on a nationwide basis, so cities must get special permission to permit legal cannabis sales. And the federal government has yet to approve any of these requests. Interestingly, you can buy cannabis legally in many corner shops in Germany, but it’s a CBD-intensive form which contains less than .2% THC so it won’t get you high. And it’s not even clear whether selling this form of cannabis is legal (g).

The German Hemp Federation wants to change all this and overturn all laws against cannabis. To this end it’s developed a template for a judicial referral — a Richtervorlage. This is based on Article 100(1) of the German Constitution: “If a court concludes that a law on whose validity its decision depends is unconstitutional, the proceedings shall be stayed, and a decision shall be obtained from the … Federal Constitutional Court where this Basic Law is held to be violated.” The GHF wants all lawyers who defend clients on marijuana possession charges to suggest that the local judges hearing the case refer the question to the FCC. They’ve even provided the lawyers and judges with a handy draft judicial referral — a 108-page document (g) setting out all the reasons for legalizing cannabis.

This wouldn’t be the first time the FCC has been asked to declare German drug laws unconstitutional. The first time came in 1994, when the FCC accepted a referral from six courts (and an individual constitutional complaint) arguing against drug laws (g). The decision is called the “Cannabis” decision among lawyers, but was popularly known as the “Right to Get High” decision (Recht auf Rausch). The petitioners relied on Article 2 of the German Basic Law:

(1) Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law.

(2) Every person shall have the right to life and physical integrity. Freedom of the person shall be inviolable. These rights may be interfered with only pursuant to a law.

These articles are classic European civil-law constitutionalism: First you set out a extremely vague principle (people shall have the right to “free development” and “freedom of the person”), then you hedge and restrict it by qualifiers. Common-law types such as myself tend to find these phrases a bit baffling, more philosophical than legal. What exactly is “free development” of the personality? Could a child molester claim a right to practice his paraphilia because it “develops” his “personality”? Does “freedom of the person shall be inviolable” prevent the government from putting criminals in prison?

The answer is, of course, no, which is why pragmatic common-law lawyers see little point in these vague guarantees. Yet they do serve a purpose — they describe what you might call the default setting for government policy: Leave people alone unless you have a good reason for interfering in their lives. In practice, what this means is that the government must jump through numerous hoops if it seeks to restrict peoples’ personal freedom: it must prove that it has a good reason for doing this, that the restriction on freedom is clear enough so people won’t be unfairly surprised by it, and that the restriction is as narrow as possible.

This balancing scheme is known formally as the “proportionality principle”. Its modern form was established by the FCC itself, and has proven influential worldwide and within the EU. It holds that a law restricting freedom must satisfy the criteria of suitability, necessity, and proportionality. The law must be suited to achieve the government’s purpose (it’s aimed at the right goal), necessity (it goes only as far as necessary to achieve that goal), and proportionality in the narrower sense. Necessity means that the law goes no further than necessary to achieve its purpose. Proportionality in the narrower sense means that, taking into account all of the competing interests, the law represents an appropriate balance between, or among them. A much more detailed description, by the prominent German constitutional theorist Robert Alexy, can be found here.

The proportionality principle is the structural framework for arguing that marijuana should be legalized. Basically, pro-cannabis groups argued, in 1994, that the general outlawing of marijuana failed on all three grounds. The purpose of outlawing drug consumption is to preserve public health and safety. However, marijuana is an extremely safe drug: you cannot overdose on it, you cannot become physically dependent on it, and it’s not linked to violence or accidents, or at least no more than many legal drugs. So the ban is not suitable to achieving a proper government objective. Further, the laws fail the test of necessity. Assuming the government even has an interest in reducing marijuana use, it can do so not by throwing people in jail or taking their money, but by using marketing campaigns and treatment programs. After all, these measures — not imprisonment — are what we use to combat alcohol abuse, unsafe sex, and myriad other social ills which are far more dangerous than marijuana use. And as to the third prong, the balancing test, cannabis wins here, too: the injuries to the sacred principles of personal freedom enshrined in Art. 2 of the Basic Law caused by fining and jailing people for cannabis cannot be justified by the public health benefit — if any — of reduced marijuana use.

Are you convinced? I am and have been for decades. But in 1994, the sober-minded Justices of the FCC decided there was no “right to get high” in the German constitution. which seems obvious when you phrase it that way. The linchpin of the Court’s decision was respect for the will of the legislature. Judgments about public health and safety are properly matters for the legislature, not the judiciary. Only in cases of serious disproportionality should the courts intervene to overturn a democratically-established law. The legislature did not act irrationally or maliciously in passing the law; it relied on evidence and arguments: marijuana’s effects aren’t well-understood, it can create psychological dependence, it has some negative health and psychological effects, and can be abused. The legislature has a wide “margin of appreciation” to set priorities, and it had more than enough information to justify the prohibition of marijuana. As to the proportionality, the Court noted that the federal Narcotics Law contains many provisions authorizing treatment alternatives, and also allows prosecutors to dismiss charges for minor infractions. And prosecutors regularly do just that. So while the potential for restrictions on personal freedom may seem considerable, they are much less powerful in practice.

That seemed to settle things: The FCC was not going to seize on vague (but important) Constitutional guarantees of personal freedom to overturn anti-cannabis laws. The Court was asked to revisit its decision in 2004. In this case, it was the Bernau district court which objected to sentencing a man for possession of 3.6 grams of marijuana. The Court asked the Federal Ministry of Health for a statement explaining why marijuana was outlawed, and invited three public-health experts (from Switzerland, the Netherlands, and Germany) to write reports on the state of the science on how harmful marijuana is. Based on these reports, the District Court asked the FCC to reconsider its 1994 decision, arguing that new evidence showed that marijuana was essentially harmless, and therefore should not be outlawed.

The FCC disagreed curtly (g). The Court did not even decide the issue on the merits — a three-judge panel ruled that the judicial referral was inadmissible. The FCC pointed to the high hurdles for judicial referral — a lower court cannot and should not lightly decide to ask the country’s highest Court to rule on a law’s constitutionality. The lower court must conduct a thorough review of jurisprudence and the literature to demonstrate that the question is an open and important one. The question must be framed as a stand-alone question, basically independent of the facts of the specific case. And if the lower court is asking the FCC to revise one of its own decisions which approved a law as constitutional, the lower court must cite important new information or arguments showing the previous decision should be revised. The FCC held that the lower court hadn’t satisfied all of these criteria, and thus hadn’t shown any reason for the FCC to change a decision which, after all, was only a decade old at the time.

Which brings us to the present day. The GHF is convinced that enough time has passed to justify asking the Court to address the laws again. The template for the judicial referral is quite impressive — 108 pages (g) summarizing scientific studies, UN documents, and the broad global trend toward legalization, including in many US states. Since 1994, the draft argues, cannabis has been found to have many beneficial uses, leading Germany to authorize medical marijuana. Social attitudes have changed profoundly — mainstream doctors, judges, and politicians now favor legalization of cannabis. Cannabis has been legalized in many jurisdictions, without noticeable negative effects. All of this new information changes the inputs to the proportionality test, and now requires a finding that criminalization is a disproportionate response to the dangers — if any — posed by marijuana.

Will the FCC seize the opportunity? I’m skeptical, for a few reasons. First, German lawyers, including FCC judges, are conservative in the small-‘c’ sense. Whatever else it may be, marijuana is still a drug, and few German lawyers would ever publicly confess to using it, even though many do. Legalization is still seen as a fringe argument — something for greens and lefties, but not respectable people. The FCC is an activist court in many respects, but is fairly conservative when it comes to respecting clear decisions made by the legislature. But the most important reason I think the FCC will stay out is because this justice offensive may be a victim of the pro-legalization movement’s success. Public opinion in Germany is still largely against legalization, but attitudes are softening: if you ask people whether cannabis should be legal, 60-70% say no. But if you ask whether it should be legal, strictly regulated, and taxed, about 50% of the population generally agrees. Public opinion in favor of legalization skyrocketed in the USA after 2000, and Germany may see a similar development.

Thus, I doubt the FCC sees any reason to intervene here. The Court doesn’t even need to reach the merits of the issue; it can swat away the referral on procedural grounds, as it did in 2004. As attitudes toward cannabis soften, the Court may reason, the problem will probably disappear on its own. There’s no need to wheel out the heavy artillery of declaring vast stretches of German anti-drug laws unconstitutional, with all the controversy that would bring. I would imagine the FCC wants to keep its powder dry for more fundamental questions. But the Court is always good for a surprise, so I’m not placing any wagers.

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