Cannabis decision

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Cannabis decision
Logo of the Federal Constitutional Court on its decisions
March 9, 1994
Facts: Constitutional complaints as well as concrete legal checks of several cases by criminal courts that did not want to impose penalties for minor cannabis offenses
Reference: BVerfGE 90, 145
Follow-up story: nationwide standard for the proportionality in the pursuit of minor offenses and, if necessary, the termination of investigations
  1. There is no constitutional “right to be intoxicated”.
  2. Insofar as the criminal laws threaten behavior with punishment that exclusively prepares the occasional personal consumption of small quantities of cannabis products, they therefore do not violate the prohibition of excess, because they allow, by refraining from punishment (Section 29 (5) BtMG) or criminal prosecution (Sections 153 ff StPO, § 31a BtMG) to take into account a low debt. In these cases, the prosecution of the criminal offenses is to be refrained from.
  3. The principle of equality does not require that all potentially equally harmful drugs be banned or permitted in the same way.
  4. In all cases a use of alcohol that does not lead to intoxication dominates; its intoxicating effects are well known and are mostly avoided through social control.
Mahrenholz , Böckenförde , Klein , Graßhof , Kruis , Kirchhof , winter , summer
dissenting opinions
1. Graßhof
2nd summer
Applied Law
Art. 2 Basic Law

The Cannabis Decision is the decision of the Federal Constitutional Court in 1994 in seven proceedings to punish minor violations of the ban on cannabis products . Essentially, it was the prohibited possession of these products before occasional personal consumption. From a legal perspective, this was taken into account, among other things, because several courts in Hesse and Schleswig-Holstein refused to apply criminal laws and considered a penalty to be disproportionate. This stood for the practice in most of the federal states, while in some such as Bavaria every violation was punished without exception. This was problematic not only from the point of view of equality, but also from a dogmatic point of view: The courts submitted for constitutional examination whether such criminal laws are permissible and whether the Basic Law does not suggest a “right to intoxication” .


Highlighted u. a. The case presented by the Lübeck Regional Court : The accused in the main proceedings was determined by the Lübeck Local Court's judgment of October 1, 1990 for the unauthorized distribution of hashish (Section 29 (1) sentence 1 no.1 in conjunction with Section 1 (1) Narcotics Act (BtMG) and its Annex I) sentenced to a prison term of 2 months. According to the findings of the District Court she visited her husband in prison, which for alleged in pretrial detention was to have violated the law on drugs. At the greeting, the defendant hugged her husband and handed him a note with 1.12 grams of hashish. She turned against that judgment to the appeal of the appeal under restriction to the sentence.

The criminal appeals chamber of the Lübeck Regional Court - chaired by the future federal judge Wolfgang Nešković - saw itself prevented from punishing the defendants and was convinced that the relevant criminal provisions of the Narcotics Act were unconstitutional. She had suspended the proceedings and submitted the matter to the Federal Constitutional Court in accordance with Article 100.1 of the Basic Law for examination as to whether Section 29.1 sentence 1 No. 1 BtMG (tax alternative action) in conjunction with Section 1 subsection 1 BtMG and its annex I (hashish) are compatible with the Basic Law. The Chamber came to this conclusion after an extensive evaluation of specialist medical literature and hearing experts.

The submission of the criminal chamber was based essentially on three arguments:

  • The inclusion of cannabis products in Annex I to Section 1 (1) of the BtMG violates the principle of equality in Article 3 (1) of the Basic Law, because alcohol and nicotine are not listed there.
  • The criminal liability of the supply of cannabis products for personal consumption is also incompatible with Article 2, Paragraph 1 of the Basic Law, the right to the free development of one's personality .
  • A violation of Article 2, Paragraph 2, Clause 1 of the Basic Law (right to physical integrity ) exists because the citizen who wants to get intoxicated by exercising his “right to intoxication”, which is protected by constitutional rights, is prohibited by the criminal law from purchasing cannabis products for personal consumption or to be forced into the more harmful alternative, namely alcohol consumption, which is not a criminal offense. It is not compatible with the right to physical integrity that the legislature prohibits the intoxicant, under threat of punishment, from taking the intoxicant , which is significantly less harmful to his health .

The Hildesheim Regional Court, the Frankfurt am Main Regional Court and the Stuttgart District Court then also submitted submissions under Article 100.1 of the Basic Law because they had doubts about the constitutionality of the relevant BtMG provisions on the continuation of criminal proceedings for cannabis possession and supply saw prevented.

The decision

According to the decision of the Second Senate, the restrictions of Article 2, Paragraph 1 of the Basic Law apply to dealing with drugs. There is no such thing as a “right to get intoxicated” that would be removed from these restrictions.

The Constitutional Court affirms the compatibility of the laws to be examined with the constitution. What is decisive is not a right to intoxication derived from the Basic Law, nor the requirement to equate effective substances such as alcohols and nicotine, but to a greater extent the rule of law and the principle of proportionality . Whether penal and prohibitive laws are proportionate is carried out in a three-stage test with regard to suitability, necessity, and appropriateness. In the case of the examined Narcotics Act, this is ultimately to be affirmed. For minor violations, however, there is only a small penalty or no penalty at all; as a rule, state organs have to refrain from prosecution from the outset. The Narcotics Act also provides such possibilities.

This has to be done uniformly and equally among the federal states.

Different opinion of the judge Graßhof

The judge Graßhof supports the decision in the result, but not the full reason. It establishes other constitutional requirements for an abstract high-risk offense :

  • The examination of the Narcotics Act with regard to proportionality has to be carried out on two levels:
    • The first question to be asked is whether a penalty can be threatened to protect the respective legal interest in the offense (objective relation). In other words, who or what is protected when someone is punished for harmless intoxication.
    • Then the general three-stage proportionality test has to be carried out. However, Judge Graßhof cannot agree to the suitability of the Senate majority, but sees this as a flaw in the examination.

Different opinion of the judge Sommer

Judge Sommer does not endorse the final part of the decision in point 2 and also partly does not support the reason:

  • The Narcotics Act does not meet the requirements of the principle of proportionality. It is too broad in terms of quality and degree.
  • This deficiency is not cured by individual case-related possibilities to refrain from punishment or not to prosecute an act defined as a criminal offense - even if these possibilities are to be interpreted as a rule of non-punishment / prosecution in a large number of cases.


  • Ronald Rippchen: The hashish verdict RK 03 - of the BVG complete, with encores plus new materials for the hemp discussion. Werner Pieper`s Medienxperimente Verlag, 1994, out of print (antiquarian available), ISBN 978-3-930442-03-4 .

Web links

Individual evidence

  1. Also referred to as the hashish decision , cf. Printed matter 17/6620 (PDF; 79 kB) of the German Bundestag. However, to be distinguished from decisions 1 BvR 2062/96, 1 ​​BvR 2428/95
  2. BVerfGE 90, 145