Judicial referrals regarding the criminalisation of cannabis products inadmissible

Press Release No. 65/2023 of 11 July 2023

Order of 14 June 2023 - 2 BvL 3/20, 2 BvL 8/23, 2 BvL 2/23, 2 BvL 1/23, 2 BvL 14/22, 2 BvL 13/22, 2 BvL 12/22, 2 BvL 5/22, 2 BvL 4/22, 2 BvL 3/22, 2 BvL 7/21, 2 BvL 5/21, 2 BvL 14/20

In an order published today, the Third Chamber of the Second Senate of the Federal Constitutional Court declared several referrals from ordinary courts relating to the criminalisation of cannabis products to be inadmissible. The referring courts – specifically, the Bernau/Berlin, Münster and Pasewalk Local Courts (Amtsgerichte) – considered statutory offences in the Narcotic Drugs Act (Betäubungsmittelgesetz – BtMG) to be unconstitutional insofar as they concern cannabis products.

 The referrals, which are largely identical in substance, fail to demonstrate that all of the criminal provisions referred are relevant to the initial proceedings before the respective courts. They also do not satisfy the strict substantiation requirements applicable to referrals on issues that the Federal Constitutional Court has already previously decided. The referring courts fail to demonstrate and substantiate any change of legal significance in the facts or the law that would be capable of prompting a new constitutional review of the questions decided by the Federal Constitutional Court in its order of 9 March 1994 (Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 90, 145 ff.).

Facts of the case:

Narcotic drugs, as defined by the Narcotic Drugs Act, include inter alia the substances and preparations listed in Annex I to the act. Among the narcotic drugs listed in Annex I are various cannabis products. §§ 29 ff. of the Narcotic Drugs Act criminalise specific conduct involving narcotic drugs, including cannabis products.

In its order of 9 March 1994 (BVerfGE 90, 145 ff.), the Federal Constitutional Court held that § 29(1) first sentence no. 1 of the Narcotic Drugs Act, insofar as it makes the illicit trade, import, supply and acquisition of cannabis products a punishable offence, and § 29(1) first sentence no. 3 of the Narcotic Drugs Act, insofar as it makes the possession of cannabis products a punishable offence, are compatible with the Basic Law.

The referring courts suspended several criminal proceedings in which the defendants are accused of punishable violations of the Narcotic Drugs Act as a result of their involvement with cannabis products and referred the provisions of the Narcotic Drugs Act, insofar as they apply to cannabis products, to the Federal Constitutional Court for constitutional review. In particular, the referring courts assert that the criminalisation of cannabis products amounts to a disproportionate interference with the general freedom of action protected by Art. 2(1) of the Basic Law (Grundgesetz – GG), the general right of personality protected by Art. 2(1) in conjunction with Art. 1(1) of the Basic Law and with the liberty of the person protected by Art. 2(2) second sentence of the Basic Law. They further submit that the provisions violate Art. 3(1) and Art. 103(2) of the Basic Law.

Key considerations of the Chamber:

The referrals are inadmissible.

1. Insofar as the referrals from the Bernau/Berlin Local Court constitute a global referral of all provisions of the Narcotic Drugs Act as applied to cannabis products for constitutional review, they fail to demonstrate the relevance of these provisions to the decision in the initial proceedings. The same ultimately applies to the referrals from the Pasewalk and Münster Local Courts. The referring courts object to the general classification of cannabis as a narcotic drug without establishing a connection to the criminal provisions to be applied in their respective initial proceedings. However, specific judicial review proceedings are not a means of general legislative oversight. They may only concern provisions whose validity is relevant to the decision to be made by the referring court. It has not been demonstrated, nor is it otherwise ascertainable, that this applies to all provisions of the Narcotic Drugs Act insofar as they concern cannabis products.

2. In addition, the referrals do not satisfy the strict substantiation requirements applicable to a referral on an issue that the Federal Constitutional Court has already previously decided. The referring courts failed to demonstrate and substantiate any change of legal significance in the facts or the law that would be capable of prompting a new constitutional review of the questions decided by the Federal Constitutional Court in its order of 9 March 1994. Ultimately, the referring courts merely state their own legal assessments, which deviate from the legal viewpoint of the Federal Constitutional Court in the aforementioned decision.

a) That the use of narcotic drugs may in principle fall within the general freedom of action protected by Art. 2(1) of the Basic Law was not subject to doubt in the 1994 decision of the Federal Constitutional Court. However, the Court held that such conduct is subject to the limitations set out in the second half-sentence of Art. 2(1) of the Basic Law and found that conduct involving drugs, particularly intoxication, is not part of the core of private life that is not subject to any restrictions. The submission of the Bernau/Berlin Local Court that the Federal Constitutional Court denied a ‘right to intoxication’ is thus too narrow. Rather, the Federal Constitutional Court only held that there is no ‘right to intoxication’ that is not subject to the restrictions of Art. 2(1) of the Basic Law. Insofar as the Local Court disagrees with the Federal Constitutional Court’s view in this regard, its reasoning does not satisfy the stricter substantiation requirements applicable to a renewed referral made pursuant to Art. 100(1) of the Basic Law, because its submissions are based on an incorrect understanding of the constitutional standards. The referral also substantively fails to refute the Federal Constitutional Court’s principal statement that drug use, and particularly intoxication, cannot be part of the core of private life that is not subject to any restrictions.

b) The referrals do not demonstrate any change of legal significance in the facts or the law on the basis of which the Federal Constitutional Court’s decision of 9 March 1994 – according to which the interference with personal freedoms resulting from the criminalisation of cannabis products is justified – might be considered no longer tenable. The referrals are based on an incorrect understanding of the standards applicable to the constitutional review of criminal provisions. The referring courts do not adequately address the Federal Constitutional Court’s reasoning in its decision of 9 March 1994, nor do they show any change of legal significance in the facts or the law that would be capable of raising doubts as to the tenability of the reasons given for the finding of the referred provisions’ conformity with the Constitution.

aa) This applies to the reasoning submitted in the referrals regarding the asserted lack of a legitimate purpose.

1) In its decision of 9 March 1994, the Federal Constitutional Court recognised that the statutory offences in the Narcotic Drugs Act and its classification of cannabis as a narcotic drug serve several purposes. The provisions are designed to protect the health of both individuals and the public from the dangers associated with cannabis products and, above all, to prevent youth drug addiction. Moreover, the statutory offences in the Narcotic Drugs Act are intended to protect against dangers resulting from the harmful effects of drugs on society, including the so-called soft drug of cannabis. In this context, the Federal Constitutional Court held that the scientific findings regarding the risks associated with cannabis use did not affect the continued validity of the purpose pursued by the classification of cannabis as a narcotic drug. The Court held that while cannabis consumption was far less dangerous than had been assumed by the legislator when it enacted the Narcotic Drugs Act, it was still uncertain whether it could be assumed that cannabis did not pose any danger.

 (2) The referrals fail to demonstrate and substantiate why the aim of the statutory offences in the Narcotic Drugs Act that was approved in the 1994 decision is no longer tenable under constitutional law. The referring courts themselves do not assume that cannabis use is entirely risk-free. For the most part, they merely apply their own, new assessment to already-known aspects and point to uncertainties in the medical research.

 The primary argument of the referrals is that the occasional use of cannabis by adults is not associated with any significant danger to those individuals. However, they fail to address that the Federal Constitutional Court has already taken into account that there are diverging assessments regarding the dangers of cannabis consumption and that, with moderate use, the amount of direct damage to one’s health is considered to be low. The referrals do not submit any new findings that would make these considerations appear no longer constitutionally tenable.

Nor does the argument put forward by the referrals as to the medical benefits of cannabis, as a counter-argument to its potential for risk, cast any credible doubt on the prior assessment of the Federal Constitutional Court. This is because the referring courts fail to reconcile this argument with the existing rules on the medical use of cannabis. Consequently, the referrals do not fulfil the criterion of including in their legal assessment other provisions related to the provisions referred for constitutional review.

 bb) The referrals also do not refute the assessment of the Federal Constitutional Court as to the suitability of the criminalisation of cannabis products in its decision of 9 March 1994.

 (1) The starting point for the Federal Constitutional Court’s suitability assessment in that decision was the assumption that cannabis consumption was associated with certain dangers and risks. As with its assessment of the aim of the statutory provisions, the Federal Constitutional Court took into account the fact that the health risks associated with cannabis products were lower than what had been assumed by the legislator when it enacted the law. This assessment was further based on the legislative approach of subjecting all conduct involving cannabis products other than consumption to comprehensive state control in light of the dangers associated with the drug and its trade to individuals and the general public and to provide for statutory offences regarding illicit involvement with cannabis products, without exception, in order to give effect to this control.

(2) The referrals do not assert a tenable basis to call these statements into question. They offer only an incomplete consideration of the aims pursued by the legislator that were upheld in the decision of 9 March 1994.

 The fact that criminal laws are broken in lawful society does not indicate, in and of itself, that the laws are generally unsuitable for achieving their intended purpose.

 The statutory offences in the Narcotic Drugs Act are aimed at expressing the social condemnation intended by the legislator, particularly in regard to the trade in narcotic drugs, and to punish such conduct. In this regard, the aims of strengthening the universal legal interest of the protection of minors and of counteracting further forms of organised crime are of particular significance.

 The referrals do not demonstrate that the criminal provisions in the Narcotic Drugs Act are generally unsuitable for furthering the legislative purposes due to changes of legal significance in the facts or the law. They do not discuss these aims of the Narcotic Drugs Act. They also fail to address the key reasons for the specific design of the statutory offences in the Narcotic Drugs Act in the legislative process.

 cc) The Federal Constitutional Court’s assessment as to the necessity of the criminalisation of cannabis products and of the criminal provisions that give it effect is also not called into question by the referrals.

 (1) In its decision of 9 March 1994, the Federal Constitutional Court found the legislator’s conclusion that criminal provisions punishing the illicit involvement with cannabis products were necessary to achieve the law’s aim to be unobjectionable under constitutional law. In those proceedings, it was asserted that the prohibition of cannabis had failed to completely achieve the legislative aims and that tolerance of cannabis use would be a less intrusive means to achieve these aims. Yet the Court did not find this assertion to be compelling, since the criminal policy discussion on this issue had not been concluded. The Court emphasised the legislator’s leeway to choose among several potentially suitable approaches to achieve a legislative aim. The Court found that only under certain circumstances could constellations arise in which established criminological findings had to be taken into account in judicial review proceedings, as such findings would compel the legislator to adopt a particular approach to a matter requiring statutory regulation under constitutional law or require the legislator to rule out its own enacted provision as a possible solution.

 (2) In light of the limited scope of constitutional review, the referrals lack the necessary substance.

 It is a matter for the democratically elected legislator to adapt criminal provisions to social developments. Calls for a ‘better cannabis policy’ are generally insufficient to establish a tenable basis for casting doubt on the legislator’s decision as to what is necessary to achieve the intended legislative purpose. The referrals do not cite any reliable criminological findings that would be capable of compelling the legislator to adopt a particular approach to a matter requiring statutory regulation under constitutional law or requiring the legislator to rule out its own enacted provision as a possible solution.

 dd) The referrals also do not make clear why the considerations informing the Federal Constitutional Court’s decision regarding the appropriateness of the criminalisation of cannabis products and of the criminal provisions that give it effect are no longer tenable under constitutional law.

 (1) According to the decision of 9 March 1994, the legislator’s general approach of a comprehensive prohibition of cannabis products – with very few exceptions – does not violate the prohibition of excessive measures (Übermaßverbot). The prohibition is justified by the aim of protecting the population, particularly young people, from the health risks associated with the drug and from the risk of psychological dependence, and the aim of counteracting criminal organisations that control the illicit drug market and their harmful conduct. In light of these important interests of the common good, the Federal Constitutional Court held that the interest in tolerating cannabis products was not of equal value. The Court also accepted the legislator’s decision to use criminal sanctions as a means of enforcing the prohibition.

 The Federal Constitutional Court also did not find that the sanctions imposed by § 29(1) first sentence no. 1 of the Narcotic Drugs Act for the illicit acquisition of cannabis products and those imposed by § 29(1) first sentence no. 3 for illicit possession were disproportionate. However, the Court qualified this assessment by emphasising that in these specific constellations, the threat to legal interests resulting from individual offences and individual culpability were low and that the imposition of criminal sanctions on those who only consumed small quantities of cannabis products on a one-time or occasional basis could have negative effects on prevention for individual offenders. The Court nevertheless did not presume that the general criminal sanctions for the illicit acquisition and possession of cannabis products violated the constitutional prohibition of excessive measures, even considering such constellations. In this respect, the Court pointed out the possibilities of prosecutorial discretion pursuant to § 31a of the Narcotic Drugs Act or the criminal court’s ability to refrain from imposing a punishment pursuant to § 29(5) of the Narcotic Drugs Act.

 (2) The referrals do not establish any change of legal significance in the facts or the law that could refute the reasoning of the Federal Constitutional Court.

 In its 1994 decision, the Federal Constitutional Court considered the argument, also set out in the referrals, that the comprehensive prohibition of cannabis products violated the prohibition of excessive measures, given that it also criminalised conduct related to the consumption of small quantities of cannabis, as well as the argument that criminalisation affected ‘millions of consumers’. The argument that occasional cannabis use by adults is likely not associated with significant dangers was also taken into consideration in the decision of 9 March 1994. Ultimately, the submission of the referring courts merely demonstrates that they view the reasoning and decision reached by the Federal Constitutional Court to be flawed.

 Nor does the general trend towards liberalisation of cannabis laws in other states or the legal and political discussion regarding decriminalisation in Germany constitute a change of legal significance in the facts or the law that would be capable of casting serious doubt on the considerations informing the Federal Constitutional Court’s decision.

 c) The referrals also fail to demonstrate that the reasoning adopted by the Federal Constitutional Court in its decision of 9 March 1994 is no longer tenable in view of the general guarantee of the right to equality under Art. 3(1) of the Basic Law.

 aa) With regard to the asserted unconstitutionality of the unequal treatment of cannabis and alcohol, the referrals do not put forward any change of legal significance of the facts or the law that could rebut the Federal Constitutional Court’s finding that this unequal treatment is justified.

 (1) The Federal Constitutional Court considered it constitutionally permissible to assume that, in the context of the criminal provisions of the Narcotic Drugs Act, the difference between the rules applicable to cannabis and those applicable to alcohol and nicotine were based on reasons that are of such nature and significance that they were capable of justifying the different legal consequences. Among other findings, the Court concluded that the legislator could not effectively prevent alcohol consumption due to traditional consumption habits in Germany and in the European cultural context.

 (2) The argument of the referring courts that alcohol consumption is far more dangerous and harmful than cannabis consumption and that cannabis and alcohol do not constitute ‘potentially equally dangerous drugs’ does not satisfy the substantiation requirements set out in § 80(2) first sentence of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG). Insofar as the referrals compare risks and potential harm, they fail to recognise that, according to the Federal Constitutional Court’s decision, health risks are not the only relevant criterion for including a substance in the list annexed to the Narcotic Drugs Act. Rather, the Federal Constitutional Court assumed that alcohol abuse poses risks to both individuals and the general public that are equivalent to the risks posed by cannabis products or even exceed them. Nevertheless, the Court did not find that Art. 3(1) of the Basic Law required the legislator to refrain from prohibiting cannabis as a drug because the consumption of alcohol could not be effectively prevented. This aspect is not sufficiently discussed in the referrals; in particular, the mere assertion that cultural habits in relation to cannabis have changed is not sufficient in this regard.

bb) The submissions regarding the unconstitutionality of the differing practices of applying § 31a of the Narcotic Drugs Act (refraining from prosecution) likewise do not meet the substantiation requirements.

 The referring courts consider the differing practices of applying the law to be new relevant facts supporting admissibility of the question, submitted by way of subsidiary application, of the unconstitutionality of § 29(1) no. 1 of the Narcotic Drugs Act with regard to the alternative of the acquisition of cannabis and § 29(1) no. 3 of the Narcotic Drugs Act, each in conjunction with Annex I to § 1(1) of the Narcotic Drugs Act. The basic premise underlying this assertion is correct. However, the referrals do not discuss the Court’s considerations in its 1994 decision regarding the question of whether § 29(1) first sentence no. 1 of the Narcotic Drugs Act (old version) and § 29(1) first sentence no. 3 of the Narcotic Drugs Act (old version) violate the prohibition of excessive measures. Instead, they contend there is a violation of Art. 3(1) of the Basic Law, but fail to recognise that – in line with their reasoning – this violation does not concern legislation, but rather the application of the law. The referring courts disregard the fact that a legal provision that by itself is not objectionable, but results in violation of constitutional law in its application generally only amounts to a violation of the Basic Law when the unconstitutional practice is caused by the provision itself, and thus reflects a structural regulatory deficit that leads to this practice. The referrals do not demonstrate that this is the case here.

 d) The referrals also do not demonstrate a violation of the principle of legality under Art. 103(2) of the Basic Law, in particular in its manifestation as the principle of specificity, in a manner that satisfies the substantiation requirements under § 80(2) first sentence of the Federal Constitutional Court Act.

 aa) The referrals claim that the provisions violate Art. 103(2) of the Basic Law because the legislator did not define a threshold value for the term ‘small quantities’ in § 31a(1) first sentence of the Narcotic Drugs Act. The Pasewalk Local Court additionally makes reference to the term ‘quantities which are not small’ used in § 29a(1) no. 2 of the Narcotic Drugs Act. The courts argue that because the application of the law relies on different parameters when determining the relevant quantities of substances (net weight in some instances, active substance in others), it is therefore not foreseeable in which cases there is a risk of punishment under which provision.

 bb) This again does not satisfy the statutory substantiation requirements because the referrals do not sufficiently discuss the constitutional standard of review and the relevant case-law of the Federal Constitutional Court regarding the principle of legality and its manifestation as the principle of specificity. The referring courts fail to recognise that the use of indeterminate legal concepts that must be given specific shape, including blanket clauses in criminal law, is not objectionable if a reliable basis is provided for interpreting and applying the provision in question using accepted methods of interpretation, in particular, by reading the provision together with other provisions in the same law, considering the statutory context or drawing on the established case-law of the highest courts. Such is the case for the definition of quantities in the statutory offenses of the Narcotic Drugs Act. They have been given specific shape through the established case-law of the highest courts.