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Germany: Is the criminalization of cannabis unconstitutional?

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Bernau criminal judge turns to Federal Constitutional Court to assist stoners

The prohibition of cannabis is unconstitutional. This is the conclusion reached by criminal judge Andreas Müller of the district court in Bernau (near Berlin). He justified his point last week in a 141-page submission order, which the Federal Constitutional Court must now rule on.

In the case in question, a 24-year-old mechanical engineering student bought 2,6 grams of resin in the Görlitzer Park (Berlin) and was subsequently subjected to a police check. As the young man had already been caught with cannabis resin, the prosecutor refused to stop the proceedings and demanded a fine of 150 euros.

Judge Müller presented the proceedings to the city of Karlsruhe. However, he was not only concerned with the student, but also with the estimated four million cannabis users in Germany who are threatened by the police and the courts at all times.

criminalization, Andreas Müller

Müller valued that it is disproportionate that cannabis and its products, marijuana and hashish, are still on the list of illegal drugs in the Narcotics Act. With “moderate consumption” by staple consumers, cannabis is “relatively harmless” and much more harmless than legal alcohol. While alcohol causes tens of thousands of deaths a year, cannabis does not cause a single one, according to Müller. Therefore, possession of small amounts should at least go unpunished.

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In his submission order, Müller was the first judge to use a sample that the German Hemp Association (DHV) released at the end of 2019. The DHV wants to use it as part of its "justice offensive" to facilitate appeals before the Federal Constitutional Court.

Legalization in other countries could help.

But Müller himself is a man of conviction. In 2015, he published the book “Kiffen und Kriminalität” (Smoking and crime). The judge also openly admits his own (past) experiences with cannabis. Müller is considered the most famous juvenile judge in Germany. He made a name for himself by forbidding young Nazi delinquents from continuing to wear combat boots.

This is not the first time that the Federal Constitutional Court has had to address the issue of the stoner. In 1994, judges ruled that there was no “right to intoxication” and that the legislature had “a margin of appreciation” in the classification of drugs. There was no obligation to treat alcohol and cannabis the same. In order to maintain proportionality, it was sufficient that procedures were generally abandoned for small quantities.

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However, Mr Müller believes that the solution of the cessation of activities proposed by Karlsruhe has not proved its worth.

What a “small amount” is is also defined differently at the federal level. In Bavaria and Baden-Württemberg it can reach 6 grams, in Berlin and Bremen, 15 grams. Ultimately, only about two-thirds of all cannabis cases are dismissed. There are therefore up to 30000 convictions per year.

For a new request to the Constitutional Court to be authorized, Judge Müller must prove that there have been “new facts” since 1994. The reference to the regulated legalization of cannabis in Portugal, Uruguay, Canada and in US states, which did not lead to chaos or loss of control, is particularly promising. According to Ms Müller, this shows that criminal law is "not necessary" to achieve objectives such as the protection of minors.

The question of when and how the Federal Constitutional Court will deal with the bill is totally open. Until then, the cannabis ban will continue to apply. Only constitutional judges in Karlsruhe can declare laws unconstitutional.

Tags : GermanyLawProhibitionStoner
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