Judgement of German Constitutional Court on Cannabis

Basic principles

with respect to the judgement of the second Senat 

[panel 

of judges] of 9 March 1994

• 2 BvL 43/92 -
• 2 BvL 51/92 -
• 2 BvL 63/92 -
• 2 BvL 64/92 -
• 2 BvL 70/92 -
• 2 BvL 80/92 -
• 2 BvR 2031/92 - - - -
  1. a) Involvement with drugs is subject to the provisos laid down in Art. 2 Par. 1 GG [= Grundgesetz = "Basic Law" = the German Constitution]. There is no such thing as a "Right to Intoxication" which is exempt from these restrictions.
  b) The penalty provisions of the Narcotics Act which threaten punishment for unauthorized involvement with cannabis products are to be tested against the criterion of Art. 2 Par. 1 GG with respect to the prohibition enforced by penalties and against Art. 2 Par. 2 Sent. 2 GG with respect to the threatened imprisonment.
  2. a) When evaluating the suitability and necessity of a measure chosen to achieve an intended aim (as required by the principle of commensurateness), and when assessing and predicting the dangers threatening the individual or the public, (as is also required in this context), the legislature is entitled to a freedom of judgement which can only be reviewed to a restricted extent by the Federal Constitutional Court.
  b) When the severity of an intervention is being measured against the importance and urgency of the grounds adduced in its justification, the limit of what can be considered reasonable for those subject to the prohibition must not be exceeded (prohibition of excess, or commensurateness in the narrow sense). Application of this criterion may lead to a situation in which the intended means of protecting a legal right or interest may not be permissible because the resulting restrictions on the constitutional rights of the person concerned are clearly more significant than the increased protection for the right or interest, meaning that it is inappropriate to make use of the means of protection envisaged.
  3. In so far as the penalty provisions of the Narcotics Act [ BtMG] make types of behaviour punishable which are exclusively preparatory to the occasional personal use of small quantities of cannabis products and do not involve endangerment of others, they do not thereby contravene the prohibition of excess, since the legislature has made it possible for the prosecution authorities to take account of any individual element of wrongdoing or guilt being only minor by refraining from imposing a penalty (cf. § 29 Par. 5 BtMG) or refraining from prosecution (cf. §§ 153 ff. StPO [Code of Criminal Procedure], § 31a BtMG). In such cases, the prohibition of excess will basically require that the prosecution authorities refrain from prosecution of the offences set out in § 31a BtMG.
  4. The principle of equality before the law does not require that all drugs which are potentially equally harmful should be prohibited or permitted to the same extent. It is not unconstitutional for the legislature to have regulated involvement with cannabis products differently from involvement with alcohol or nicotine.

Federal Constitutional Court

• 2 BvL 43/92 -
• 2 BvL 51/92 -
• 2 BvL 63/92 -
• 2 BvL 64/92 -
• 2 BvL 70/92 -
• 2 BvL 80/92 -
• 2 BvR 2031/92 -

IN THE NAME OF THE PEOPLE

In the cases

• decision of 17 December 1991 by the Lübeck Landgericht [Regional Court] to suspend proceedings and submit the case to the Federal Constitutional Court - 2 Ns (Kl. 167/90) -

	- 2 BvL 43/92 -,

• decision of 30 July 1992 by the Hildesheim Landgericht to suspend proceedings and submit the case to the Federal Constitutional Court - 18 Ns 18 Js 21210/90
• 2 BvL 51/92 -,
  3. for constitutional review of whether § 29 Par. 1 Sent. 1 Nr. 1 (type of action: trafficking) in conjunction with § 1 Par. 1 and the appended Schedule I (cannabis resin-hashish --) BtMG is compatible with Art. 2 Par. 1 of the Basic Law
• decision of 8 July 1992 by the Stuttgart Amtsgericht [District Court] to suspend proceedings and submit the case to the Federal Constitutional Court - B 31 Ds 3132/91 -
• 2 BvL 6392 -,
  4. for constitutional review of whether § 29 Par. 1 Nr. 1 - correctly Nr. 3 - (type of action: unauthorized possession of narcotics) in conjunction with § 1 Par. 1 and the appended Schedule I (cannabis resin - hashish -) BtMG is compatible with Art. 2 Par. 1 of the Basic Law
• decision of 8 July 1992 by the Stuttgart Amtsgericht to suspend proceedings and submit the case to the Federal Constitutional Court - B 31 Cs 4970/91 -
• 2 BvL 64/92 -,
  5. for constitutional review of whether § 29 Par. 1 Sent. 1 Nr.1 (type of action: acquisition) in conjunction with § 1 Par. 1 and the appended Schedule I (cannabis resin) BtMG is compatible with Art. 1 Par. 1, Art. 2 Par. 1 and 2 Sent. 1, Art. 3 Par. 1 of the Basic Law
• decision of 17 August 1992 by the Hildesheim Landgericht to suspend proceedings and submit the case to the Federal Constitutional Court - 18 Ns Js 27655/91 -
• 2 BvL 70/92 -,
  6. for constitutional review of whether § 29 Par. 1 Nr.1 (type of action: trafficking and importation), § 29 Par. 1 Sent. 1 Nr. 3, § 29 Par. 1 Sent. 1 Nr. 5, § 29 Par. 3 Sents. 1 and 2 Nr. 4 (in the version in force until 21 September 1992) as well as § 30 Par. 1 Nr. 4 BtMG (importation of narcotics in not insignificant quantities), in so far as they relate via § 1 Par. 1 BtMG in conjunction with the appended Schedule I to cannabis resin, are compatible with Art. 2 Par. 1 in conjunction with Art. 1 Par. 1, Art. 2 Par. 2 Sent. 1, Art. 3 Par. 1 and Art. 20 (principle of the rule of law) of the Basic Law
• decision of 19 October 1992 by the Frankfurt am Main Landgericht to suspend proceedings and submit the case to the Federal Constitutional Court - 5/24 KLs 87 Js 22626.0/92 -
• 2 BvL 80/92 -,
  7. of Mr. Alexander Stefan S ch o r l i , Schulenburger Landstraße 145, Hanover,
• legally represented by: the Rechtsanwälte [lawyers] Gerhard Strate and Klaus-Ulrich Ventzke, Grindelallee 164, Hamburg - against a) the verdict of the Federal Court of Justice of 23 October 1992 - 5 StR 364/92 -, b) the verdict of the Lüneburg Landgericht of 20 March 1992 - 29 KLs/31 Js 5148/91 (5/91) -
  • BvR 2031/92 -

the Federal Constitutional Court - Second Senat 

[panel of 

judges] - consisting of the judges

Vice-president Mahrenholz,    Böckenförde,    Klein,

and the judges Graßhof,    Kruis,    Kirchhof,    Winter,

   Sommer

gave judgement on 9 March 1994 as follows:

Grounds:

A.

The cases, presented jointly for judgement, concern the 

question 

of whether the penalty provisions of the Narcotics Act, in so far 









as they foresee penalties for various types of unauthorized 

involvement with cannabis products, are constitutional.

I.

The Act regulating involvement with narcotics (Narcotics Act 







- BtMG) of 28 July 1981 (BGBl. I p. 681, corrected p. 

1187), which has been amended several times, subordinates such 

involvement to extensive control by the state, as detailed in 

§§ 3 to 28. In principle, any involvement with cannabis 









requires official permission (§ 3 of the Act) and is 

otherwise prohibited. Such permission, in conjunction with the 

legal exceptions to the permission requirement, distinguishes 

legal involvement with narcotics from illegal. The narcotics 

covered by the Act are stipulated according to the principle of 

enumeration, consisting of the substances and preparations listed 









in the Schedules I to III appended to the Act (§§ 1, 

Par. 1, 2 Par. 1 Nrs. 1 and 2 of the Act). The Act distinguishes 

between non-permissible (Schedule I), permissible but not 

prescribable (Schedule II) and permissible and prescribable 

narcotics (Schedule III). Permission for involvement with the 

non-permissible narcotics enumerated in Schedule I can only be 

given exceptionally for scientific purposes or other purposes 

which are in the public interest (§ 3 Par. 2 of the Act). 

The narcotics enumerated in Schedule I include:

Cannabis (marihuana)	Plants and parts of plants belonging to the 

genus Cannabis

• with the exception of:
  a) their seeds,
  b) when they are planted as a protective strip in the cultivation of turnips and are destroyed before they flower or
  c) when the purpose of involvement with them (with the exception of their cultivation) is to obtain or process their fibres for commercial purposes -;Cannabis resin (hashish) the resin exuded by plants belonging to the genus Cannabis ;Tetrahydrocannabinol (THC) Tetrahydro-6,6,9-trimethyl-3-pentylbenzo<c>chromen-1-ol (the active intoxicant substance contained in marihuana and hashish).

The penalty provisions of §§ 29 ff. BtMG

 foresee 

comprehensive penalties for unauthorized involvement with 

narcotics. In the most recent version, that of 28 February 1994, 

the provisions, in as far as they are relevant to the cases at 

issue here, are as follows:

§ 29 Offences 

shall be punished with a term of imprisonment of up 

to five years 

or with a fine.

§ 29a Offences 

Until the Narcotics Act was amended by the Act to 

Combat the 

Illicit Traffic in Drugs and other Manifestations of Organized 

Crime of 15 July 1992 --OrgKG-- (BGBl. I p. 1302), 

which came into force on 22 September 1992, the maximum penalty 

provided for in § 29 Par. 1 BtMG was only four years. 









Furthermore, instead of the new § 29a of the BtMG, 

concerning unauthorized trafficking in narcotics in not 

insignificant quantities, created by the Act of 15 July 1992, 

§ 29 Par. 3 Sents. 1 and 2 Nr. 4 BtMG (earlier 

version) was still in force. This provision read as follows:

By means of the law of 2 August 1993 implementing the 







United 

Nations Agreement of 20 December 1988 to prevent unauthorized 

traffic in addictive and psychotropic substances (Implementation 

of 1988 Addictive Substances Agreement Act, BGBl. I p. 

1407), which came into force on 28 February 1994 (Announcement of 









23 February 1994, BGBl. I p. 342), the words "without 









being permitted to do so in accordance with § 3 Par. 1 Nr. 

1"  in § 29 Par. 1 Sent. 1 Nr. 1 BtMG were 

replaced by the word[s] "without authorization" [

unerlaubt] and the words "without having obtained them 

on the basis of a permit in accordance with § 3 Par. 1" 









in § 29 Par. 1 Sent. 1 Nr. 3 BtMG were replaced by 

the words "without at the same time being in possession of a 









written permit for their acquisition".

II.

The cases are based on the following facts:

1. The case for constitutional review 2 BvL 43/92:

2. The case for constitutional review 2 BvL 51/92:

As grounds for its decision, the appeal court states 

that it 

endorses the convincing remarks of the Lübeck Landgericht

 on all points and repeats them. The inclusion of cannabis 

resin (hashish) in the catalogue of forbidden drugs contravenes 

the essential content (Art. 19 Par. 2 GG) of Art. 2 Par. 1 









and Par. 2 Sent. 1, that of Art. 1 Par. 1 and that of Art. 3 Par. 









1 GG. The court considers that hashish is a relatively 

harmless drug and does not cause any significant damage either to 









users or to the national economy. The danger of users switching 

over to harder drugs is no greater with this narcotic than in the 









case of the stimulant alcohol, use of which is millions of times 

more widespread.

The court points out that Art. 2 Par. 1 GG 

protects the 

citizen from being subjected to improper restrictions on the free 









development of his personality. The sale of hashish for profit 

neither infringes the rights of others nor violates the 

constitutional order or moral law. Seen against the fact that no 

penalties are attached to the sale of alcohol for profit, 

prohibition of such trafficking is a violation of Art. 3 GG









. As further grounds for its decision, the court refers to the 

submission for constitutional review by the Lübeck 

Landgericht, which it appends to its own decision.

The accused appealed against this sentence.

Proceedings were instituted against the defendant in 

the original 

case at the Frankfurt am Main Landgericht for possession, 

importation of and trafficking in a not insignificant quantity of 









hashish (§29 Par. 1 Sent. 1 Nrs. 1 and 3, Par. 3 Sent. 1 

and-in the earlier version of the Act-Sent. 2 Nr. 4, § 30 

Par. 1 Nr. 4 in conjunction with § 1 Par. 1 BtMG and 

the appended Schedule I). After the main hearing, the 

Landgericht suspended the proceedings and in accordance with 

Art. 100 Par. 1 GG, has submitted the case to the Federal 

Constitutional Court for judgement on whether § 29 Par. 1 

Sent. 1 Nr. 1 BtMG (type of action: trafficking and 

importation), § 29 Par. 1 Sent. 1 Nr. 3 (possession), § 









29 Par. 1 Sent. 1 Nr. 5 (conveyance in transit), § 29 Par. 3 









Sents. 1 and 2  Nr. 4 of the earlier version (particularly 

serious case of unauthorized trafficking in a not insignificant 

quantity of narcotics) and § 30 Par. 1 Nr. 4 BtMG 

(importation of a not insignificant quantity of narcotics), in so 









far as they relate via § 1 Par. 1 BtMG and the 

appended Schedule I to cannabis resin, are compatible with Art. 2 









Par. 1 in conjunction with Art. 1 Par. 1, Art. 2 Par. 2 Sent. 1, 

Art. 3 Par. 1 and Art. 20 GG (principle of the rule of 

law).

The court considers it proved that the accused, on behalf of an 

unknown third party and for payment of 3000 Dutch guilders per 

kilogram, attempted to transport somewhat more than 5 kilograms 

of hashish by air from Katmandu to Amsterdam. When his flight 

made its scheduled stop in Frankfurt am Main, the hashish was 

found, partly in the accused's hand baggage and partly in his 

checked baggage. The accused was detained.

In the view of the court, this sequence of events is to be seen 

legally as both trafficking in narcotics (hashish) and 

importation of a not insignificant quantity of narcotics 

(hashish) (§§ 29 Par. 1 Sent. 1 Nr. 1, 30 Par. 1 Nr. 4 

in conjunction with § 1 Par. 1 BtMG and the appended 

Schedule I). The offence of completed importation of a not 

insignificant quantity of narcotics takes precedence over the 

simultaneous offences of importation of narcotics (§ 29 Par. 









1 Sent. 1 Nr. 1 BtMG) and possession (§ 29 Par. 1 

Sent. 1 Nr. 3 BtMG).

The court finds itself unable to sentence the accused, however, 

since it considers the applicable penalties (§§ 29 Par. 









1 Sent. 1 Nr. 1, 30 Par. 1 Nr. 4 in conjunction with § 1 

Par. 1  BtMG and the appended Schedule I-cannabis resin--) 









to be unconstitutional. Similarly, the court considers that the 

offences over which the more serious offence took precedence, as 

well as the penalty provisions in § 29 Par. 3 Sents. 1 and 2 









Nr. 4 (in the earlier version) in conjunction with § 1 Par. 

1  BtMG, and the appended Schedule I, which was fulfilled 

because of the quantity of the active component (753.92 THC) in 

the 5385.2 grams of hashish transported by the accused, are also 

unconstitutional. The court considers that these penalties are 

also relevant to its decision in the sense of Art. 100 Par. 1 

GG because they must be considered when determining the 

penalty to be applied and therefore when deciding the legal 

consequences. In determining the penalty, simultaneous offences 

(here: § 29 Par. 3 Sents. 1 and 2  Nr. 4 of the earlier 

version BtMG) are namely also relevant as well as the 

penalty provisions superseded by the more serious one.

"Finally, the appellant challenges the 

constitutionality-with reference specifically to Art. 3 Par. 1 

GG-of the verdict, citing the decision given, in accordance with 

Art. 100 Par. 1 Sent. 1 GG, by the Lübeck 

Landgericht (Strafverteidiger 1992, p. 168). Simply in 

view of the extent of the traffic in hashish involved, however, 

this challenge is ineffectual (cf. also the Federal Court of 

Justice ruling of 25 August 1992 - 1 StR 362/92 -)."

III.

a5) The statement by the Federal Minister is 

accompanied by:

a statement by the Federal Public Health Department with respect 

to the effects of the use of hashish on physical and mental 

health;

a statement by the Federal Criminal Police Office on the drugs 

situation and on the national strategies to combat drugs in the 

various countries of Europe as well as on the criminal effects of 









the consumption of hashish in the Federal Republic of Germany;

a survey (1990) by the Federal Public Health Department of the 

consumption and abuse of illegal drugs, alcoholic beverages, 

medication and tobacco products;

BTDrucks. [Federal Publication] 11/4329 of 11 April 1989 

dealing with the jurisprudence according to the penal provisions 

of the Narcotics Act in the years 1985 to 1987;

the National Drugs Control Plan;

BTDrucks 12/2838 of 17 June 1992, the answer of the 

Federal Government to the written parliamentary question 

submitted by the Member of the Bundestag Ingrid Köppe 









and the group Bündnis 90/Die Grünen.

B.

The cases submitted are in essence admissible; the 

constitutional 

appeal is unconditionally admissible.

I.

II.

The admissibility of the constitutional appeal, which was 

submitted within the period stipulated, is not in question. The 

same is true in so far as the object of the submission is the 

provision in § 29 Par. 3 Sents. 1 and 2 Nr. 4 BtMG 

(earlier version), which was in force at the time the offence 

took place and which formed the basis for the judgement by the 

Lüneburg Landgericht.

C.

The penalty provisions of the Narcotics Act, in so far as 

they 

are the object of an admissible submission, are in accordance 

with the Basic Law. The penalization of unauthorized involvement 

with cannabis products, specifically hashish, therefore violates 

neither Art. 2 Par. 2 Sent. 1 GG nor Art. 3 Par. 1 nor 

fundamentally Art. 2 Par. 1 GG in conjunction with Art. 2 

Par. 2 Sent. 2 GG.

The constitutional appeal is unfounded. 

I.

A particular characteristic of the drugs wave is the 

considerable 

increase in the use of Indian hemp (Cannabis sativa) and 

of the resin it contains (hashish). This is a hallucinogen, 

long-term use of which, according to the consensus of medical 

opinion, can lead to altered consciousness and to psychological 

dependence. The psychoactive effect is clearly based on the 

isomer tetrahydrocannabinol (THC) which it contains, full 

synthesis of which only became possible a few years ago. A 

withdrawal syndrome clearly does not occur and there is only a 

slight tendency to increase the dose. It can be assumed with 

considerable certainty that the drug acts as a 

"pacesetter". The effect it has of causing a transfer 

to harder drugs can be seen particularly among young people. In 

practice, it is by means of cannabis that they find their way 

into the world of drugs. The exact biochemical processes which 

occur in the body when this drug is used are as yet largely 

unknown. Intensive research is being carried out, however, and 

concrete results can be expected in about five years time. It is 

above all the side effects resulting from long-term use of the 

drug which are unknown. On the basis of experiments with pregnant 









rats carried out by American pharmacologists, the drug is even 

suspected of causing genetic defects. The medical significance of 









the drug is insignificant.

Under the terms of the Geneva Convention of 19 February 1925, 

binding for the Federal Republic of Germany according to the law 

of 26 March 1959 (BGBl. Part II p. 333), cannabis and its 

resin (hashish) became subject to the control system of the Opium 









Act. Because of its lack of medical significance, hashish was 

made subject to the absolute prohibition of § 9 of the Opium 









Act. The present bill maintains this legal position. In the light 









of current scientific knowledge, it would be unjustifiable, above 









all for reasons of health policy, to remove the controls on this 

drug provided for in the Opium Act and to allow free traffic in 

it as a mass stimulant, something which has been suggested on 

various occasions. The marketing which would undoubtedly commence 









as a result of any such lifting of the restrictions would 

stimulate mass consumption to such an extent that even the last 

of those persons with a psychological predisposition making them 

particularly susceptible to the dangers of drugs would also be 

reached. It is true that the present uncertain level of knowledge 









makes it impossible to predict accurately the damage to society 

as a whole which would result from the "integration" of 









this drug, but a rough estimate suggests that it would be very 

great. Above all, it is not possible to foresee the extent of the 









harmful side effects which might occur as a result of mass 

consumption, especially since cannabis has not yet been 

sufficiently tested, either pharmacologically or clinically, with 









respect to mass consumption. It will be necessary to wait for the 









results of the research projects which are under way. It would 

not be responsible at present to remove the restrictions on the 

drug. It has, furthermore, been subject to the system of controls 









laid out in the Opium Act for decades without objection. To this 

extent, there are no objections from a constitutional point of 

view. Reference is made to the decision of 27 August 1969 by the 

Oberstes Landesgericht [Regional Supreme Court] of Bavaria 









-RReg. 4a St 81/69 - (NJW Nr. 51/69 p. 2297) and 

the decision of the Federal Constitutional Court of 17 December 

1969."

This evaluation is also the basis of the government bill 

preparatory to the 1981 Narcotics Act, the legislation currently 

in force (cf. BTDrucks. 8/3551 p. 24):

"The risks to health involved in the use of cannabis 

products have been demonstrated repeatedly by scientific 

research; at the very least, it cannot be shown that they are not 









harmful. Within the United Nations bodies whose task it is to 

deal with matters related to narcotics, the overwhelming majority 









opinion is also that the danger to health resulting from cannabis 









misuse is a fact (a recent example is to be found in the annual 

report of the International Narcotics Control Board for 

1978)." 

• the plant as a whole (marihuana),
• cannabis resin (hashish),
• cannabis concentrate (hashish oil).

The simplest method of preparing cannabis for 

consumption is to 

take the dried and broken up leaves, together with the flowers 

and stalks (marihuana), and roll them in a cigarette paper to 

produce "joints". More commonly smoked than marihuana, 

both in the Federal Republic of Germany and in the rest of 

Europe, is cannabis resin (Cannabis extracta resinae tincturae

), or "hashish". Hashish oil, which is even richer 

in the active ingredient, is as yet relatively rare on the 

European market. 

c2) The present state of scientific knowledge as to the effects 

of cannabis consumption is described in the literature as follows 









(cf.: Geschwinde, Rauschdrogen, 2nd ed. 1990, pp. 6 ff.; 

Quensel in: Scheerer/Vogt <eds.>, Drogen und 

Drogenpolitik, 1989, pp. 379 ff.; Körner, BtMG, 

3rd ed., appendix C 1; Täschner, Das Cannabisproblem, 









3rd. ed. 1986, pp. 100 ff.; Statement by the Federal Public 

Health Department with Respect to the Effects of the Use of 

Hashish in case 2 BvL 43/92):

There is far-reaching agreement that cannabis 

products do not 

lead to physical dependence (cf. Körner, loc. cit., appendix 









C 1, point 46 g; Eberth/Müller, 

Betäubungsmittelrecht, 1982, § 1 marginal nr. 27; 

Geschwinde, loc. cit., p. 41, marginal nr. 156) and-apart from 

the chronic consumption of large doses-do not lead to the 

development of tolerance (cf. Körner, loc. cit.; Geschwinde, 









loc. cit.; Federal Public Health Department loc. cit., p. 13; 

Täschner, loc. cit., pp. 147 ff.). The direct damage to 

health resulting from moderate use is also considered to be 

slight (cf. Geschwinde, loc. cit., p. 41, marginal nr. 155; 

Täschner, loc. cit., pp. 143 ff.; Federal Public Health 

Department, loc. cit., p. 10, 14 ff.). On the other hand, the 

possibility of psychological dependence is hardly contested (cf. 

Täschner, loc. cit., pp. 147 ff.; Körner, loc. cit.; 

Federal Public Health Department, loc. cit.; Geschwinde, loc. 

cit., p. 42, marginal nr. 157 <for a minority of cannabis 

consumers in the case of chronic consumption of large doses>; 

at the same time, however, the addiction potential of cannabis 

products is categorized as very slight (cf. Täschner, 

NStZ 1993, p. 322 <323>). This is consistent with the 

large number of unobtrusive occasional consumers, and of users 

who restrict themselves to the consumption of hashish. It has 

also been reported that long-term consumption of cannabis 

products can lead to behaviour disorders, lethargy, apathy, 

anxiety, derealization, and depression (cf. Körner, loc. 

cit.; Täschner, loc. cit.; more cautious: Geschwinde, loc. 

cit., pp. 42 ff.; Federal Public Health Department, loc. cit.) 

and that this can disrupt personality development, specifically 

of young people. On the other hand, there is disagreement as to 

whether the use of cannabis products can cause the so-called 

amotivational syndrome, a condition characterized by apathy, 

passivity and euphoria. The point at issue is whether it is 

consumption of cannabis products which causes the amotivational 

syndrome (as stated by Täschner, loc. cit., pp. 154 ff.) or 

whether such consumption is the result of a pre-existing attitude 









to life (as stated by Quensel, loc. cit., p. 387; more cautious: 

Geschwinde, loc. cit., pp. 42 ff., marginal nrs. 158 to 164; 

Federal Public Health Department, loc. cit., p. 17 f.). There is 

general agreement, however, that the amotivational syndrome is 

only associated with long-term use of large doses of cannabis 

products.

The majority of authorities now reject the view that cannabis has 









a "pacesetting" function for hard drugs, in so far as 

an actual physical characteristic of cannabis products is meant 

(cf. Körner, op. cit., appendix C 1, marginal nr. 46 m; 

Geschwinde, op. cit., p. 44 f., marginal nr. 166; Quensel, op. 

cit., p. 391; Federal Public Health Department, op. cit., pp. 22 

ff.). This is in accordance with the results of the 1990 survey 

(appendix 3 to the statement by the Federal Government in case 2 

BvL 43/92, p. 15), according to which only 2.5% of hashish 









users also use other drugs which are subject to the provisions of 









the Narcotics Act. This does not preclude cannabis consumption, 

in an undetermined number of cases, having a "transfer 

effect" with respect to hard drugs. It is generally 

supposed, however, that this has less to do with habituation than 









with fact that the drugs market forms a single unit-the cannabis 

user generally buys his hashish from dealers who also traffic in 

"hard" drugs (in effect, this is also the position of 

the Federal Public Health Department in its statement, loc. cit, 

bottom of p. 22).

Finally, there is no disagreement as to the fact that acute 

cannabis intoxication can have a negative effect on driving 

ability (cf. Kreuzer, NStZ 1993, pp. 209 ff.; Maatz/Mille, 









DRiZ 1993, pp. 15 ff.; BVerfGE 89, 69 <77 

ff.>).

II.

Penalization of unauthorized involvement with cannabis 

products 

does not violate Art. 2 Par. 2 Sent. 1 GG. 

The arguments given in the submissions with the intention of 

demonstrating a violation of this constitutional norm misjudge, 

from the very start, the area protected by the Basic Law.

Art. 2 Par. 2 Sent. 1 GG protects the individual against 

encroachment by the state in his life and the inviolability of 

his person. In conjunction with Art. 1 Par. 1 Sent. 2 GG, 

furthermore, it obliges the state to protect and promote these 

legal rights or interests, in other words above all to protect 

them from unlawful intrusions by others (cf. BVerfGE 39, 1 









<42>; 88, 203 <251>; jurisprudence).

Given that the prohibition of involvement with cannabis products 

does not force anyone to resort to other intoxicants, such as 

alcohol, which do not fall under the provisions of the Narcotics 

Act, no state intrusion with respect to the rights and interests 

protected by Art. 2 Par. 2 Sent. 1 GG is involved. Rather, 









the decision whether to damage his health by abusing such freely 

available intoxicants is the responsibility of the consumer 

himself.

The duty of the state to protect its citizens would be reversed 

if the legislature were required not to subject unauthorized 

involvement with cannabis products to penalties simply because 

other intoxicants not subject to the provisions of the Narcotics 

Act may in certain circumstances lead to greater dangers to 

health.

III.

The inclusion of cannabis products in Schedule I appended to 









§ 1 Par. 1 BtMG, meaning that unauthorized 

involvement with these substances is subject to the penalty 

provisions of the Narcotics Act, does not violate Art. 3 Par. 1 

GG because alcohol and nicotine are treated differently.

IV.

Nor does any violation of Art. 3 Par. 1 GG arise 

because 

the legislature has not distinguished in the Narcotics Act 

between so-called soft and hard drugs, according to the level of 

danger involved in use of the individual narcotics. The 

legislation does not create a situation in which hard drugs such 

as heroin and soft drugs such as cannabis products are accorded 

equal treatment by the criminal law, a situation which could 

therefore be considered arbitrary because of the unequal dangers 

involved in using the different narcotics. It is true that the 

legislature has created unified penalty provisions for all types 

of narcotics.  However, by requiring actions to be assessed as to 









their relative seriousness, by laying down a wide range of 

penalty provisions and also by setting out regulations making it 

possible to refrain from prosecuting or imposing punishment, it 

has given the courts power to take account of differing levels of 









wrong-doing and guilt in individual cases and thus also to take 

account of the level of danger posed by the particular drug in 

question. By doing so, it has kept within the limits enshrined in 









Art. 103 Par. 2 GG.

The same applies to consideration of the different levels of 

wrong-doing and guilt inherent in the individual types of 

violation of the prohibition of unauthorized involvement with 

narcotics. 

V.

The constitutional appeal is unfounded. The sentencing of 

the 

appellant, under § 29 Par. 1 Sent. 1 Nr. 1, Par. 3 Sents. 1 

and 2 Nr. 4 (earlier version) BtMG, to two years and six 

months imprisonment for repeated trafficking in not insignificant 









quantities of hashish does not violate his constitutional rights. 









As has already been pointed out, the penalty provision of § 

29 Par. 1 Sent. 1 Nr. 1 BtMG, in so far as trafficking in 

cannabis products is concerned, is compatible with the 

constitution. The same goes for the provisions of § 29 Par. 

3 Sents. 1 and 2 Nr. 4 BtMG (earlier version). Once again, 









it is unnecessary within the context of the constitutional appeal 









to go into the issue of whether or not, in setting the upper 

limit of a "not insignificant quantity" of cannabis 

products at 7.5 grams of the active component THC, the highest 

judicial instance has done so in such a way that there can be no 

constitutional objection to the commensurateness of the minimum 

penalty of one year's imprisonment. Certainly given the quantity 

of hashish (6 kilograms) in which, according to the findings of 

the court of first instance, the appellant had trafficked, the 

application by the courts of § 29 Par. 3 Sents. 1 and 2 Nr. 

4 BtMG (earlier version) does not violate the 

constitution. Nor can any other constitutionally relevant mistake 









be found in the interpretation and application of the criminal 

law to the findings, either with respect to the verdict of guilty 









or to the level of the penalty imposed.

Dissenting Opinion

- 2 BvL 43/92, 2 BvL 51/92, 2 BvL 63/92, 2 BvL 64/92, 2 

BvL 

70/92, 2 BvL 80/92, 2 BvR 2031/92 -I agree with the result of 









the judgement but not with all sections of the grounds given. 

Reviewing penalties against the criterion of commensurateness 

entails, in part, other requirements (I.). Given that there is 

disagreement within the Senat as to the conditions under 

which the constitution obliges the legislature, in the case of a 

broadly defined offence relating to an abstract case of 

endangerment, to provide for separate, less serious offences in 

the material criminal law, the position taken by the majority of 

the Senat should have been set out more clearly. Nor does 

the majority take sufficient account of the function and level of 









wrongdoing of abstract offences of endangerment (II.). This also 

has consequences for the application of these criteria to 

constitutional review of the penalties provided for by the 

Narcotics Act (III.).

I.

Every penal provision entails social and ethical 

condemnation, 

backed by the authority of the state, of the action it penalizes 

(BVerfGE 27, 18 <29>). This means a serious 

restriction of the right to free development of the personality 

and liberty of the offender who is the object of such moral 

condemnation. The legislature can therefore only make use of the 

criminal law to further the aim of protecting a legal right or 

interest if the principle of commensurateness is respected. This 

criterion subjects a penalty to constitutional review on two 

levels. On the one hand, what is at issue is whether certain 

behaviour may be made subject to penalties in order to protect 

the legal right or interest involved. On the other, it must be 

decided whether the nature and severity of the penalty provided 

for are constitutional (cf. BVerfGE 37, 201 <212>). 

In this context-and here the Senat is unanimous-the 

commensurateness must be tested on three levels. The prohibition 

provided for by the criminal law must in the first place be 

suitable; secondly it must be necessary to protect the legal 

right or interest concerned; and thirdly it must be decided 

whether the measures taken to protect that right or interest do 

not form an unreasonable burden for the person concerned.

It is on the first two levels in testing the commensurateness of 

a measure that the main emphasis actually lies. They make 

concrete the general, nonspecific question of whether it is 

commensurate by setting out two specific requirements which it 

must meet. The imprecise question as to the commensurateness of 

the measure is thus made distinct and precise arguments are 

provided with which that commensurateness can be confirmed. In 

contrast, the third stage provides criteria which are less 

rational, by questioning the reasonableness and appropriateness 

of the measure. It therefore serves primarily to correct results 

which are clearly untenable (cf. also Pieroth/Schlink, 

Grundrechte, Staatsrecht II, 8th ed., marginal nrs. 332 f.).

II.

III.

• punishing the threat to the legal right or interest is a suitable and necessary means of protecting it even if the danger is only abstract (a);
• the actions prohibited by the provisions under review constitute an abstract danger and making them subject to a prohibition enforced by penalties is therefore a suitable means of protecting the legal right or interest (b);
• in order to protect the legal right or interest it is necessary to enforce the prohibition of these dangerous actions by penalties ©;

Finally, consideration must also be given to whether 

the 

requirements of the prohibition of excess have been observed by 

the legislation providing methods of response which allow justice 









to be done to the individual guilt of the offender (d).

Dissenting opinion of judge Sommer with respect to 

the judgement 

of the second Senat of 9 March 1994.-

2 BvL  43/92, 2 BvL  51/92, 2 BvL  63/92,

2 BvL  64/92, 2 BvL  70/92, 2 BvL  80/92,

2 BvR  2031/92 -

I am unable to agree completely with Nr. 2. of the basic 

principles of the Senat's judgement. The penalization in 

§ 29 Par. 1 Sent. 1 Nrs. 1, 3 and 5 of the Narcotics Act (







BtMG) of the importation, conveyance in transit, acquisition 

and possession of cannabis products (in particular hashish) even 

in small quantities for personal use violates Art. 2 Par. 1 in 

conjunction with Art. 1 Par. 1 and Art. 2 Par. 2 Sent. 2 GG









, both in conjunction with the principle of commensurateness.

Even the mere threat of punishment-besides its imposition and 

enforcement-has particular significance as a restriction of a 

constitutional right (I). Contrary to the view of the Senat, when 









tested against the norm of commensurateness in the narrow sense 

(prohibition of excess), the provisions of the Narcotics Act, in 

the extent described above, are already unconstitutional. The 

existence of a violation of the prohibition of excess is not 

dispelled by the fact that the authorities can refrain, in 

accordance with the provisions of §§ 29 Par. 5 and 31a 

BtMG,  from imposing a penalty or from prosecution or can 

halt the proceedings (III).

I.

The criminal law is intended to protect the foundations of 

an 

ordered society. It is applied as the ultima ratio of this 









protection when certain behaviour, beyond the mere fact that it 

is prohibited, is particularly harmful and intolerable for 

society, so that preventing it is therefore a particularly urgent 









matter (cf. BVerfGE 88, 203 <257 f.>). The criminal 

law in a state under the rule of law, within the free democratic 

constitutional structure, is therefore necessarily 

"fragmentary" (cf. Adolf Arndt, Strafrecht in einer 

offenen Gesellschaft, Festvortrag vor dem 47. Deutschen 

Juristentag 1968, Sitzungsbericht J, p. 8 and p. 23).

The threat, imposition and enforcement of punishment, as a 

particularly serious sanction (cf. BVerfGE 22, 49 

<79>; 45, 272 <289>), express the accusation that the 









offender has violated "elementary communal values" (cf. 









BVerfGE 45, 187 <253>). Through the social and 

ethical condemnation of certain behaviour which they entail, 

penal provisions address the citizen in his personal status, in 

his honour, and are thus closely related to the matter of human 

dignity (Art. 1 Par. 1 GG) (cf. Sax, "Grundsätze 









der Strafrechtspflege", in: Bettermann - Nipperdey - 

Scheuner, Die Grundrechte, vol. 3, part 2, 1959, p 909 

<931>). In this approach, which provides a basic criterion, 









I am in agreement with the judgement of the Senat. 

Against this background, the principle of commensurateness, as 

the criterion against which to test a penal provision, gains 

increased importance. In particular, one must ask in each given 

case whether, in view of the constitutional rights which it 

affects in a special manner, the threat of criminal punishment 

constitutes an excessive sanction (principle of commensurateness 

in the narrow sense or prohibition of excess). The general 

consideration of the various aspects which is therefore required 

must take into account, on the one hand, the value of the legal 

right or interest which the legislature is concerned to protect, 

the extent of the damage threatening it, the level of probability 









that such damage will in fact be done, and also, for instance, 

whether the problem is a pressing one and whether the legislature 









is required to act under pressure of time. On the other hand, one 









must consider the seriousness of the restriction, its breadth, 

and the "closeness" of the action which is to be made 

criminal to the damage which is to be prevented. The final 

consideration becomes particularly significant when the 

legislature extends the penalization preemptively into the area 

of "abstract" endangerment; it is precisely here that 

the constitutional prohibition of excess, which functions to 

ensure liberty, may require-as recognized by the Senat in 

principle (C.I.5)-- a reduction in the maximum level of 

protection which it is intended to give to the right or interest 

by imposing the threat of punishment. 

II.

From the point of view of the prohibition of excess, it 

would 

seem to me to be no longer justifiable that, going beyond a 

comprehensive administrative prohibition of free involvement with 









cannabis products (if necessary, enforced by fines), their 

importation, conveyance in transit, acquisition and possession 

should be criminalized where small quantities for personal use 

are concerned.

This objection cannot, it is true, be levelled at the 







1971 

legislature. At that point in time, the pressure of the problem 

and the pressure of time, as well as the inconclusive state of 

knowledge set out in the government bill (cf. BRDrucks.

665/70 <new> pp. 1 to 8), justified the full extent of the 

prohibition, enforced by penalties, of cannabis products.

As the Senat assumes, however (cf. opinion C.I.6.), the 

legislature may be obliged, because of changed circumstances, to 

review and revise regulations which were originally 

constitutional (cf. BVerfGE 65, 1 <56>). Among other 









things, this is the case when an evaluation of the existing 

situation which was unexceptional from a constitutional point of 

view at the time is later shown to be wholly or partly incorrect 

(cf. BVerfGE 88, 203 <310>).

After more than twenty years, the general threat of penalties in 

§ 29 Par. 1 Sent. 1 Nrs. 1, 3 and 5 BtMG can, on the 

basis of this uncertain evaluation of the dangers, no longer be 

accepted without qualification, especially since the relationship 









between the spread of the illicit drugs market, together with the 









crime accompanying it and resulting from it, and the 

criminalization of involvement with small quantities of cannabis 

products purely for consumption appears increasingly less clear.

The final decisive factor in my considering, to the extent 

indicated, that the limit of what is justifiable from the point 

of view of the prohibition of excess has been exceeded-leaving 

aside the slightness of the danger involved and the way in which 

the relevant types of behaviour have been made abstract offences 

of endangerment "of the second and third degrees"-is 

the far-reaching effect of criminalization, which is now called 

into question by the changed factual background. The Senat 









takes the number of cannabis consumers in the Federal Republic of 









Germany to be up to 4 million, of whom more than half (56.7%), 

however, indicate that they consume cannabis on between one and 

five occasions per year (cf. opinion, C.I.2.c)c2)<2>). 

Accordingly, it speaks of a large number of unobtrusive 

occasional consumers (opinion C.I.2.c)c2<5>). It has not 

been shown that any significant proportion of these occasional 

consumers pass cannabis on to groups which are at risk.

The fact that behaviour preparatory to personal consumption, 

which is not in itself subject to penalties, is threatened with 

punishment means that those concerned are ultimately made 

responsible for the presumed harmful tendencies or criminal 

behaviour of third parties. In so far as criminalization is, 

furthermore, justified as serving to combat the market, they are 

being compelled to serve a higher purpose. Attaching the threat 

of punishment to an activity which is only very slightly and 

indirectly dangerous brings them close to being merely a means to 









an end. This means, however, that the threat of punishment is no 

longer compatible with the right to dignity and respect which is 

protected by the constitution (cf. BVerfGE 28, 386 

<391>; 45, 187 <228>; 50, 205 <215>).

Matters might only be different if a more reliable assessment of 

the dangers became available through more extensive clarification 









of the actual situation. If, as is the case with the 

comprehensive criminalization of involvement with cannabis 

products, persistent doubts are expressed from various quarters, 

over a period of years, as to the existing legislation, then the 

legislature will only be fulfilling its obligation to observe, 

review and revise if, on the basis of reliable sources, it 

determines for itself whether the factual basis for its 

evaluation is still valid. The Senat has not demanded 

detailed explanation from the legislature as to whether and how 

it has fulfilled its obligation with respect to the extent of the 









penalties which is at issue here. Nor has the Senat 

gathered evidence itself, for example by obtaining reports from 

experts (cf. BVerfGE 6, 389 <398 ff.>), in order to 

be able to base its ruling on a sufficiently broad and up-to-date 









factual foundation.

A violation of the Basic Law continues to be such 

even if based 

on an obligation of the Federal Republic of Germany in 

international law (cf. BVerfGE 45, 83 <96>). It is 

not necessary to determine what weight such an obligation should 

have-given the tendency of the Basic Law to take a positive 

stance with respect to international law (cf. BVerfGE 45, 

83 <96>)-- in deciding whether the prohibition of excess 

has been observed, since the partial decriminalization which I 

consider necessary is not inconsistent with the relevant 

international agreements.

c1) To some extent, it is true, no obligation (or one which is 

only insufficiently clear) can be found in these agreements for 

the Federal Republic of Germany to penalize involvement with 

small quantities of cannabis products for personal use. The penal 









provisions of the "Single Convention on Narcotic Drugs of 30 









March 1961" (BGBl. 1973, II, p. 1353) oblige the 

signatory states merely to take the necessary measures [







mesures nécessaires] to penalize deliberate, 

prohibited involvement with drugs (Art. 36 Par. 1; cf. further 

Art. 2 Par. 5 letter b and Art. 4). The resulting freedom with 

respect to the possession of drugs for personal use (cf. also 

Alfons Noll, "Drug abuse and penal provisions of the 

international drug control treaties", in: Bulletin on 

Narcotics, XIXX [Nr. 4/1977], 41 <44 f.>) has also not 

been affected by the "Protocol of 25 March 1972 to Amend the 









1961 Single Convention on Drugs" (BGBl. 1975, II, p. 

2) The "Schengen Agreement of 19 June 1990 Governing the 

Gradual Removal of Controls at the Common Borders" (BGBl.

 1993, II, p. 1010) obliges the signatory states to prevent 

involvement with cannabis products on the supply side 

("delivery"), including by means of the criminal law 

(Art. 71 Pars. 1 and 2); where stemming unauthorized demand









 is concerned, the necessary measures are left to the discretion 

of the signatory states (Art. 71 Par. 5).

c2) In contrast, the "Convention of 21 February 1971 on 

Psychotropic Substances" (BGBl. 1976, II, p. 1477) 

requires that every application of cannabis products other than 

for medical or scientific purposes should be prohibited (Art. 5 

Par. 1 and Art. 7) and that every deliberate violation of the 

prohibition should be treated as punishable (Art. 22 Par. 1a). An 









express demand for consumer behaviour to be made punishable is 

first found in the "United Nations Agreement of 20 December 

1988 to Prevent Unauthorized Traffic in Addictive and 

Psychotropic Substances" (Addictive Substances Agreement) (

BGBl. 1993, II, p. 1137). 

However, the conventions mentioned also subject penalization of 

the possession and acquisition of drugs to the proviso of the 

constitutional principles of the signatory states (Art. 22 of the 









Convention on Psychotropic Substances; Art. 3 Par. 2 of the 

Addictive Substances Agreement). Moreover, the Addictive 

Substances Agreement also contains the proviso of the principles 

of the legal order of the signatory states. The Federal 

Government has published a statement of interpretation which in 

its view guarantees that ratification cannot form an obstacle to 

consideration "of whether or not offences at the lower end 

of the scale should be penalized" (Protokoll der 76. 

Sitzung des Rechtsausschusses des 12. Deutschen Bundestages am 

12. Mai 1993, p. 46 f.). Furthermore, according to its Par. 

11, Art. 3 of the Addictive Substances Agreement does not affect 

the principle that definition of the offences to which the 

article relates and the relevant grounds for excluding the 

imposition of a penalty are reserved to the domestic law of each 

signatory state. 

In this respect, "definitions of offences" and 

"grounds for excluding the imposition of a penalty" are 









conceivable which take account, on the level of the material 

criminal law, of both the 1988 Addictive Substances Agreement and 









of my constitutional objection. In the disputed cases, for 

example, compelling grounds for not imposing a penalty could be 

provided for (cf. § 29 Par. 5 BtMG in the version in 

the amendment put forward by the SPD on 12 May 1993, 

BTDrucks. 12/4913). Penalization could also be made 

dependent, by means of an objective precondition, on exceeding a 

minimum quantity (as in the "Draft of an Act to Amend the 

Narcotics Act" by the Land Rhineland-Palatinate, 21 

January 1993, BTDrucks. 58/93).

III.

The Senat, also, considers restrictions to be 

necessary 

with respect to the acquisition and possession of small 

quantities of cannabis products for personal consumption. The 

objections arising because of the prohibition of excess are, in 

my opinion, not removed by the reference to the provisions of 

§§ 153 ff. StPO, 29 Par. 5 and 31a BtMG.