Judge confronts Germany’s law system in order to lift ban on cannabis

On Friday, April 24th, the Federal Constitutional Court (BVerfG) received a proposal related to the prohibition of cannabis. Judge Andreas Müller of the Bernau District Court believes that the ban on cannabis in Germany is unconstitutional and intends to prove this before the country’s highest court.

Judge Müller has been advocating the legalization of cannabis for many years. In 2002, he had already called on the BVerfG to check whether the ban on cannabis was compatible with the German Basic Law.

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A fight against Germany’s cannabis ban

At that time, the BVerfG considered the judge’s application inadmissible, partly on the ground that it was itself bound by an earlier decision of 1994 under Article 31(1) of the Federal Constitutional Court Act. Judge Müller had thus not presented any new facts “that would have made it possible to depart from the earlier findings of the Federal Constitutional Court”, the BverfG had stated in 2004.

In order for a new appeal to the Constitutional Court to be admissible, Judge Müller must now prove that there have been “new facts” since 1994. For Müller, decriminalization or legalization in Portugal, Uruguay, Canada and eleven US states demonstrate that criminalization is “not necessary” to achieve objectives such as the protection of minors.

In the foreword to his 140-page brief, Müller explained that “it is imperative that the Federal Constitutional Court, which has not dealt with the ban on cannabis for more than 26 years, address the question of whether the persecution of millions of people in the Federal Republic of Germany because of cannabis use is still up to date and meets the requirements of a free society and the mandate of the Basic Law, in particular to protect minorities.”

The current classification of cannabis must be re-evaluated

Müller argues, among other things, that there is now evidence that the dangerousness of cannabis must be assessed differently than before: “The clearest and most up-to-date expression of the re-evaluation of the dangerousness of cannabis is to be found in the WHO Expert Committee, which in 2018 published a critical report on the current classification of cannabis.”

Müller also referred to the “general assumption that cannabis use leads to deterioration in mental health” which cannot be demonstrated.

“Although it can be shown that the most problematic people use cannabis particularly frequently, it is not possible to find evidence of a harmful effect of cannabis,” the judge’s report states. “In addition, it should be noted that “given the millions of users, relatively few go on an outpatient basis or are hospitalized because of a cannabis-related diagnosis.”

According to Judge de Bernau, the criminalization of approximately four million cannabis users in Germany not only violates many of the fundamental rights of the persons concerned, such as the “right to intoxication” under Article 2(1) of the Grundgesetz. It would also lead to “immense costs for the state and society due to the disproportionate nature of criminal sanctions.”

On several pages, Müller devotes himself to the relationship between cannabis and alcohol from the point of view of fundamental equality (Article 3 of the Grundgesetzf), with one conclusion: “The different treatment of cannabis and alcohol must be regarded as highly arbitrary.”

Currently, the only possibility for the decriminalization of cannabis lies with the BVerfG. No liberalization can be expected from the current federal government, as the Federal Commissioner for Drugs recently rejected any moves towards legalization.

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(Featured Image by Daniel Bone via Pixabay)

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