German High Court Legalizes Use and Possession of Small Amounts of Cannabis

INTERNATIONAL July 1994

On April 28, 1994, Germany's highest court ruled that persons caught in possession of small amounts of cannabis should not be prosecuted. The court upheld the ban against possession of the drug, but advised police not to prosecute if there were no danger to others. The decision followed a lower court ruling that banning cannabis while keeping alcohol legal violated the constitutional provision guaranteeing the equality of citizens before the law. Judge Wolfgang Neskovic, who issued the lower court decision, hailed the high court ruling as an "important withdrawal of criminal law from sections of drug policy." (Anna Tomforde, "Possession of Cannabis is Legalized in Germany," Guardian, 4/28/94, p. 12).

Professor Winfried Hassemer of Frankfurt University said that the criminal ban on cannabis had promoted a thriving black market that led to huge profits for organized crime.

According to the Agence France Presse, the decision was hailed by a majority of German political and legal experts as a realistic approach to the problem. (Jean Louis Prevost, "Constitutional Court Legalizes Use of Cannabis in Small Doses," Agence France Presse, 4/28/94). However, Chancellor Kohl's party, the Christian Democrats, and several states oppose decriminalization of drugs. The Interior Minister of Bavaria, Guenther Beckstein, voiced strong opposition to the decision, saying that it would only increase drug use and create additional work for police.

After the court's decision, the most populous German state, North Rhine-Westphalia, extended the policy of tolerance to other drugs. (Stephen Kinzer, "German State Eases Its Policy on Drug Arrests," The New York Times, 5/18/94, A5). Officials there said that they will no longer arrest people for possessing small amounts of any drug, including cocaine, heroin, morphine, amphetamines, or LSD. The state's Justice Minister, Rolf Krumsiek, said that police will not make arrests for possession of up to 10 grams of cannabis, half a gram of cocaine, heroin or morphine, or three doses of other drugs. He said he suspected that other states would follow with similar policies, either officially or unofficially. Krumsiek said that these new guidelines do not mean legalization of drugs. "They are being adopted as a way of freeing the police from the pursuit of minor offenders and those in need of treatment." He added that the police will still arrest those in possession of large quantities of drugs or those who sell them.

In response to the high court's encouragement that states harmonize their drug laws, Justice Ministers from 16 states met to set uniform guidelines. However, they failed to arrive at a collective decision, and the standards continue to vary from state to state. The definition of "small quantities" ranges from half a gram to 30 grams of cannabis.

There has been some history of Germans dealing with the drug problem outside of the criminal legal system. (Robin Gedye, "Germany's High Court Relaxes Law on Drug Use," Daily Telegraph, London, 4/29/94, p. 16). Several German cities have experimental programs to deal with drug abuse in a non- criminal context. Frankfurt has a needle exchange program that exchanges 6,000 used needles for clean ones free of charge every day. The city also provides help lines, crisis centers, hostels, and heroin substitutes.

[We have the Constitutional Court's opinion in German and an English translation. A copy of the opinion (106 pages) or the translation (76 pages) is available from the National Drug Strategy Network for $10.00.]