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 - - - -
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 -,
- 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 -,
- 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 -,
- 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 -,
- 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 -,
- 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)
-
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:
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:
(3) In particularly serious cases the punishment shall be a
term of
imprisonment of not less than one year. A particularly serious
case is
in general one in which the offender
1. to 3. ...
4. traffics in a not insignificant quantity of narcotics or
possesses or delivers a not insignificant quantity of narcotics.
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:
a) The accused in the original case was sentenced on 1
October
1990 by the Lübeck Amtsgericht-judge of the criminal
division-to two months imprisonment for the deliberate
unauthorized
delivery of hashish (§ 29 Par. 1 Sent. 1 Nr. 1 in
conjunction with
§ 1 Par. 1 BtMG and the appended Schedule I).
According to
the findings of the Amtsgericht, the accused visited her
husband
on 17 April 1990 at Lübeck Prison, where he was detained
awaiting
trial on a charge of having contravened the Narcotics Act. On
greeting
him, the accused embraced her husband, passing to him a small
package
containing 1.12 grams of hashish.
The accused appealed against this verdict, confining the
appeal to
the sentence.
b) The criminal division of the Lübeck Landgericht
,
which has jurisdiction for the appeal proceedings, finds itself
unable
to impose a penalty on the accused, considering that the relevant
penalty provisions of the Narcotics Act are unconstitutional and
that
an interpretation which conforms with the constitution is not
possible.
The court has therefore suspended the proceedings and, in
accordance
with Art. 100 Par. 1 GG, has submitted the case, giving
extensive reasons for its decision, to the Federal
Constitutional Court
for review of whether § 29 Par. 1 Sent 1 Nr. 1 BtMG
(type
of action: delivery) in conjunction with § 1 Par. 1 BtMG
and the appended Schedule I (hashish) are compatible with Art. 2
Par. 1
in conjunction with Art. 1 Par. 1 GG, Art. 2 Par. 2 Sent.
1 GG
and Art. 3 Par. 1
GG.
b1) The Landgericht considers that the inclusion of
cannabis products in Schedule I appended to § 1 Par. 1 B
tMG
is a contravention of the principle of equality before the law in
Art. 3
Par. 1 GG, on the grounds that alcohol and nicotine are
not
included in the Schedule.
In the light of the reports of the expert witnesses it has
heard,
and taking into consideration a wide variety of relevant
literature, the
court considers that it has been established that alcohol and
nicotine
are clearly more dangerous, both to the individual and to
society as a
whole, than are cannabis products. Excessive consumption of
alcohol can
lead to serious physical and psychological damage to the
individual,
and the harmful consequences for society are considerable.
As opposed to this, the individual and social consequences of
cannabis consumption are slight.
The court considers that it has not been proved that the
consumption of cannabis results in physical damage to any
significant
extent. Although smoking cannabis can lead to lung damage, this
is
insignificant when compared to the damage caused by smoking
tobacco
products and, given that hashish can also be consumed in other
ways,
does not constitute a specific risk caused by cannabis
consumption as
such. Cannabis is not known to have a fatal dose and its use does
not
lead to physical dependence. In addition, no proof has yet been
found
that chronic use of cannabis can lead to a breakdown in cerebral
function and intelligence. The psychological consequences of
cannabis
consumption can therefore also be categorized as slight. The
so-called
"amotivational syndrome" is not a specific result of
cannabis
consumption. At most, the possibility exists that the use of this
narcotic may lead to slight psychological dependence. The social
effects
are less than those of alcohol consumption. In particular, the
reports
obtained by the court from expert witnesses show that hashish is
not an
entry-level drug leading to the use of harder drugs and that it
does not
have a "pacesetter" function.
Comprehensive evaluation of all the findings shows, according
to
the court, that there are simply no longer objective grounds for
treating alcohol and cannabis products differently. Such
differential
treatment contravenes the general sense of justice. In this
context,
particular attention should be paid to the fact that such
arbitrary
differentiation leads to differential penalization. Penal
provisions
constitute the ultima ratio within the range of measures
available to the legislature and it is necessary, from the point
of view
of constitutionality, to apply a particularly stringent criterion
when
considering the grounds which induced the legislature to decide
on such
differential treatment. The legislature is obliged to constantly
review
the assessments and prognoses which led to its enacting certain
legislation and if necessary must amend that legislation to take
account
of new insights. In view of the findings of the expert
witnesses, which
the court has adopted, the assessments, evaluations and
prognoses with
which the legislature justified its decision to subject the
consumption
of cannabis to penalties can no longer be sustained.
The court also considers that the existence of a
contravention of
Art. 3 Par. 1 GG can also not be refuted by the argument
that
there is no such thing as equal treatment in wrongdoing. One
cannot
speak of an "injustice" in the constitutional sense if
the
legislature decides not to control the use of alcohol by means
of a
prohibition enforced by penalties. From the constitutional point
of
view, therefore, it is invalid to argue that even if the
legislature
permits the use of such a dangerous drug as alcohol it is not
necessarily obliged to similarly permit the use of other
dangerous
drugs. Art. 3 Par. 1 GG sets limits to the legislature's
discretion when enacting legislation.
b2) The court considers that penalizing the delivery of
cannabis
products for personal consumption is also incompatible with Art.
2 Par.
1 GG. One of the fundamental elements of the right to
self-determination is that of taking a responsible decision as to
the
nutrition, stimulants or intoxicants which one wishes to consume.
Intoxication is a basic human need. The "Right to
Intoxication"
is therefore protected by Art. 2 Par. 1
GG as a central element of personal self-determination; it
may
only be restricted by the state within the provisos set out in
Art. 2
Par. 1 GG. In the case under review, the only proviso
which
might be of relevance is that of the constitutional order. The
relevant
provisions of the Narcotics Act do not form part of the
constitutional
order.
The court considers that prohibition, enforced by penalties,
of the
delivery of hashish for personal consumption is not in accordance
with
the principle of the rule of law. This requires that the
individual
should not be subject to unnecessary intervention on the part of
the
state. The more a legal intervention affects elementary
expressions of
human liberty, the more carefully the grounds adduced to justify
it
should be weighed against the citizen's constitutional right to
liberty. Constitutional rights may only be restricted if the
principle
of commensurateness is strictly observed. A stringent criterion
must
therefore be applied when the legislature makes use of the
ultima
ratio of punishment as a means of enforcing the intended
prohibition. The court considers that the Narcotics Act fails to
meet
this criterion in so far as it penalizes actions which, in the
individual case, are directed towards making possible personal
consumption, or consumption by others, of small quantities. The
assessment on the part of the legislature which underlies the
Act,
namely that cannabis products are harmful to the individual and
to
society and that they open the door to the world of drugs, is no
longer
tenable. Quite apart from this, it has not proved possible to
effectively control involvement with cannabis products by means
of the
criminal law. The criminal law is an unsuitable instrument with
which to
achieve the legislature's aim. The punishment of cannabis
consumers is
even counterproductive and liable to increase the number of such
consumers. In the Netherlands, Italy and in certain states of
the USA,
the de facto decriminalization of possession and consumption of
cannabis products has led to a decrease in their consumption. As
a means
of regulating involvement with cannabis products, the threat of
punishment is also unnecessary. In view of the relatively
limited
dangers cannabis products involve, a suitable programme of
education
and information is sufficient to deal with them and is a less
drastic
measure. In any case, the penalization of those who acquire
cannabis
products exclusively for their own consumption or who deliver
cannabis
to others in a quantity suitable only for such consumption is not
commensurate with the weightiness and significance of the
fundamental
right to the free development of one's personality.
The court also considers that it is a violation of the
principle
of commensurateness for the legislature to have placed
"soft" and "hard" drugs on a par with one
another,
whereas the different dangers involved mean that they should
obviously
be treated differently.
Similarly, it is incommensurate that the legislature has
neglected
to differentiate between the various types of action penalized
under the
terms of the Narcotics Act. Considering the minor danger posed
by
cannabis products, the mere possession of a quantity for personal
consumption or actions which are intended solely-as in the
present
case-to place another person in possession of a single quantity
for
consumption, without intending to profit thereby, ought not to
be
penalized in the same way as trafficking in or importing larger
quantities.
b3) The court considers that Art. 2 Par. 2 Sent. 1 GG
has
been violated because the criminal prohibition on acquiring or
coming
into possession of cannabis products for personal use forces a
citizen
who wishes to exercise his constitutional
"Right to Intoxication" to make use of an alternative
which is
more harmful to his health, namely alcohol, consumption of which
is not
subject to penalties. It is incompatible with the right to
inviolability
of the person that someone who wishes to become intoxicated is
prohibited by the legislature, with the threat of penalties, from
using
an intoxicant which is considerably less dangerous to his health.
The provisions of the Narcotics Act which apply to the case
under
review are not susceptible to an interpretation which conforms
with the
constitution. They do not, namely, allow an interpretation which
would
lead to the accused going unpunished.
2. The case for constitutional review 2 BvL 51/92:
a) The accused in the original case was sentenced on 16
January
1992 by the Holzminden Amtsgericht-judge of the criminal
division-to a fine of 25 daily portions, each of DM 30.=, for
unauthorized acquisition of hashish (§ 29 Par. 1 Sent. 2 Nr.
1 in
conjunction with § 1 Par. 1 BtMG and the appended
Schedule
I). According to the findings of the Amtsgericht, the
accused on
at least one occasion acquired a piece of hashish to smoke for a
price
of between DM 50.= and DM 60.= for his own use.
The accused appealed against this verdict.
b) On the basis of the main appeal hearing of 30 June 1992,
the 7th
Kleine Strafkammer [small criminal division court] of the
Hildesheim Landgericht arrived at the same findings as the
Amtsgericht
and would confirm the verdict if the penalty provision applied by
the
Amtsgericht were constitutional. The Landgericht
considers, however, that the provision is unconstitutional and
has
therefore 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: acquisition) in conjunction with § 1 Par.
1 BtMG
and the appended Schedule I (cannabis resin) is compatible with
Art. 1
Par. 1, Art. 2 Par. 1, Art. 2 Par. 2 Sent. 1 and Art. 3 Par. 1
GG.
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.
3. The case for constitutional review 2 BvL 63/92:
a) The defendants in the original case stand accused of
unauthorized trafficking in hashish (§ 29 Par. 1 Sent. 1 Nr.
1 in
conjunction with § 1 Par. 1 BtMG and the appended
Schedule
I).
b) The Stuttgart Amtsgericht-judge of the criminal
division-considers that there are sufficient grounds to believe
that
they had with them, in Stuttgart on 7 October 1991, and in
conscious and
deliberate collaboration, 5.95 grams of hashish with the
intention of
selling it for profit. The court finds itself unable, however,
to open
the main proceedings because it considers
§ 29 Par. 1 Sent. 1 Nr. 1 BtMG unconstitutional, in
so far
as it foresees penalties for trafficking in hashish, and that an
interpretation which conforms with the constitution is not
possible. It
has therefore suspended the proceedings and, in accordance with
Art. 100
Par. 1 GG, has submitted the case to the Federal
Constitutional
Court for review of whether
§ 29 Par. 1 Sent. 1 Nr. 1 BtMG (type of action:
trafficking) in conjunction with § 1 Par. 1 BtMG and
the
appended Schedule I (cannabis resin) is compatible with Art. 2
Par. 1
GG.
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.
4. The case for constitutional review 2 BvL 64/92:
a) In the original case, the Public Prosecutor's Office
demanded
that a penalty should be imposed on the defendant for
unauthorized
possession of hashish (§ 29 Par. 1 Sent. 1 Nr. 3 in
conjunction
with § 1 Par. 1 BtMG and the appended Schedule I)
because
there were sufficient grounds to believe that he had with him
three
grams of hashish in Stuttgart on 15 October 1991.
b) The Stuttgart Amtsgericht-judge of the criminal
division-confirmed these findings but finds itself unable to pass
sentence because it considers the applicable penalty provision to
be
unconstitutional and that an interpretation which conforms with
the
constitution is not possible. It has therefore 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: possession)
--in
fact § 29 Par. 1 Sent. 1 Nr. 3 BtMG is obviously
meant-in
conjunction with § 1 Par. 1 BtMG and the appended
Schedule
I (cannabis resin) is compatible with Art. 2 Par. 1 GG.
The grounds given correspond to those in case 2 BvL
63/92.
5. The case for constitutional review 2 BvL 70/92:
a) The accused in the original case was sentenced on 3 June
1992 by
the Hildesheim Amtsgericht-judge of the criminal
division-to a
fine of 30 daily portions, each of DM 45.=, for unauthorized
acquisition
of hashish, in accordance with § 29 Par. 1 Sent. 1 Nr. 1 in
conjunction with § 1 Par. 1 BtMG and the appended
Schedule
I.
According to the findings of the Amtsgericht, the
accused,
who had previously only smoked hashish every four months at
parties, in
each case bought a 100 or 150 piece of hashish, and on one
occasion a
200 piece, at intervals of one to two weeks during the period
from July
to the beginning of September 1991. A 100 piece was the
equivalent of
8.5 grams of hashish.
The accused appealed against this sentence.
b) On the basis of the main appeal hearing of 17 August 1992,
during which the defendant repeated the admission he had made
before the
Amtsgericht, the 7th Kleine Strafkammer of the
Hildesheim Landgericht is convinced of the correctness of
the
Amtgericht 's findings and of their legal appraisal. It
considers, however, that the relevant provisions are
unconstitutional
and has therefore 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 (type of action: acquisition) in conjunction with § 1
Par. 1
BtMG and the appended Schedule I (cannabis resin) are
compatible with Art. 1 Par. 1, Art. 2 Par. 1, Art. 2 Par. 2 Sent.
1 and
Art. 3 Par. 1 GG.
The grounds given correspond with those in case 2 BvL
51/91.
6. The case for constitutional review 2 BvL 80/92:
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.
a) The court considers that there is no objective reason for
the
difference in the legal treatment of alcohol and of cannabis
products
(hashish and marihuana). By making an unjustifiable distinction,
the
legislature has exceeded the freedom it has in enacting
legislation and
has violated the prohibition of arbitrary treatment enshrined in
Art. 3
Par. 1 GG. In the light of numerous publications and
expert
opinions, the court is of the opinion-for which detailed reasons
are
given in its submission-that the consumption of cannabis is no
more
dangerous to the individual and to the public at large than the
consumption of alcohol.
The court considers further that Art. 3 Par. 1 GG is
violated by the fact that the legislature has provided the same
range of
penalties for unauthorized involvement with soft drugs as for
involvement with hard drugs (for example heroin). The equal
treatment
of soft and hard drugs is not compatible with a view of these
matters
which accords with the concept of justice. Heroin, for example,
is
indisputably a far more dangerous drug than cannabis.
b) The general right to liberty (Art. 2 Par. 1 GG) and
the
right of every person to relaxation and well-being (Art. 2 Par. 1
GG
in conjunction with Art. 1 Par. 1 GG) include the right to
use
cannabis. Consequently, actions which make possible the use of
this
drug, for example importation, conveyance in transit, possession
and
trafficking, cannot be unlawful. The restriction of a
constitutional
right which has been submitted for constitutional review is not
justified by the proviso of the
"constitutional order". The prohibition of cannabis is
not
part of the constitutional order because-as set out in detail in
the
submission-it is incommensurate. The court also considers it to
be
unsuitable because it is counterproductive as a means of
achieving the
intended aim. It is also unnecessary, since the legislature's
aims can
be achieved by means of less drastic measures. Finally, the court
considers that it is also incommensurate in the narrow sense
because the
restrictions which it places on the personal liberty of the
individual
are out of proportion to the insignificant dangers associated
with
cannabis.
c) The court considers that the prohibition of cannabis
products
means that a person who wishes to become intoxicated is forced to
use
not the less dangerous drug cannabis but alcohol, which is much
more
dangerous, and thus to endanger his health far more than is
necessary.
This restriction of the right to the inviolability of the person
is not
justified.
d) Since the prohibition of cannabis is incommensurate it
also
violates the principle of the rule of law.
7. The constitutional appeal 2 BvR 2031/92:
a) The appellant was sentenced on 20 March 1992 to two years
and
six months imprisonment by the Lüneberg Landgericht
for repeated illicit trafficking in not insignificant
quantities of
hashish, in accordance with § 29 Par. 1 Sent. 1 Nr. 1, Par.
3 Sent.
1 and (in the earlier version) Sent. 2 Nr. 4 BtMG
.
According to the findings of the court of first instance, the
appellant, between December 1990 and March 1991, sold a total of
at
least 6 kilograms of hashish to various persons in quantities of
between 250 grams and one kilogram. His earnings from this
amounted to
DM 500.= per kilogram.
b) The appellant submitted an appeal against the verdict via
his
defending counsel, on the grounds that the penalization of
involvement
with hashish was unconstitutional.
In its judgement of 23 October 1992, the Federal Court of
Justice
dismissed the appeal, confirming the constitutionality of the
relevant
penalty provisions:
"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 -)."
c) The constitutional appeal submitted by the appellant is
directed
against the above-mentioned decisions of the Lüneberg
Landgericht and the Federal Court of Justice. The
appellant
censures the violation of his rights under Art. 2 Pars. 1 and 2
and Art.
3 Par. 1 GG. He submits that the penalization of
trafficking in
cannabis products violates Art. 3 Par. 1 GG
and also-with respect to the sentence of imprisonment-Art. 2
Pars.
1 and 2 GG. To this extent, the appellant thus adopts the
views
of the Lübeck Landgericht.
The appeal states that whether or not there is a "Right
to
Intoxication" is beside the point. From the perspective of
the
constitution, however, it is by no means obvious that the model
of an
abstinent life style which is at the basis of the prohibitive
policy on
drugs should also be generally binding for adults. Such a view is
inadmissible in a state under the rule of law-at least with
respect to
risks which are acceptable for society.
III.
1. The Federal Government and the Government of Bavaria have
commented on case 2 BvL 43/92. The Senat has also
obtained statements from the President of the Federal Court of
Justice
and the Chief Federal Prosecutor.
a) The Federal Minister of Health, speaking on behalf of the
Federal Government, considers that the provisions objected to are
indeed
compatible with the Basic Law.
a1) The Minister states that the principle of equality is not
violated by the fact that involvement with alcohol is legal
whereas the
unauthorized delivery of cannabis products is subject to criminal
penalties. The legislature has not made unauthorized involvement
with
cannabis products subject to penalties without objective,
plausible
reasons, and has therefore not done so arbitrarily. The Minister
states-giving detailed reasons-that there are so many differences
between cannabis products and alcohol-not only from the point of
view of
health-that there can be no question of arbitrary, unequal
treatment.
a2) Whether a "Right to Intoxication" is protected
at all
by Art. 2 Par. 1 GG is beside the point. Prohibition by
the
criminal law of the delivery of cannabis products is in any case
covered
by the provisos in Art. 2 Par. 1 GG. In particular, there
is no
contravention of the principle of commensurateness.
In the case in question, the point is not how offences
related to
consumption, such as acquisition and possession, are to be seen
from the
point of view of the constitution. Rather, the Lübeck
Landgericht is required to decide on a case of delivery,
and
thus on a type of action which, as a result of the effects of the
drug,
constitutes considerable endangerment of the general right to
liberty of
third parties.
The Minister states that the criminal prohibition of the
delivery
of cannabis is a suitable and necessary method of protecting
public
health and thus the inviolability of the person of the individual
citizen. Making involvement with cannabis an offence is a
necessary
measure to prevent trafficking in a drug which involves risk, or
in any
case to restrict it as much as possible and thus protect above
all
young persons from damage to their health. The criminal law
creates a
barrier to violation and thus continues to make an indispensable
contribution to protecting health. More effective alternatives
do not
exist.
The criminal prohibition of the delivery of cannabis is also
reasonable for those concerned.
a3) The Minister states further that Art. 2 Par. 2 Sent. 1
GG obliges the state to protect every human being. This
duty
would be reversed if the legislature were required to refrain
from
penalizing involvement with cannabis merely because excessive
consumption of alcohol results in even greater dangers to health.
Because it is free to enact legislation in carrying out its duty
to
protect the citizen, the legislature, taking into account the
importance
of the legal rights and interests which are at stake, may
prohibit, by
means of the criminal law, the consumption of drugs which have
been
shown not to be completely harmless or to be dangerous or may
subject
certain actions to legal penalties. That the legislature should
decide,
for good reason, to exempt other substances from such penalties
does not
result in a violation of Art. 2 Par. 2 Sent. 1 GG.
a4) The Minister states further that the United Nations
Convention
on Narcotic Drugs and Psychotropic Substances, ratified by the
Federal
Republic of Germany, as well as the 1988 Vienna Convention on
Narcotic
Drugs, which is in the process of being ratified, provide grounds
for
the obligation of the signatory states to subject the
unauthorized
possession, use of and traffic in drugs to sanctions. Cannabis
products
are also subject to this obligation. The Schengen Supplementary
Agreement also obliges the Member States to impose criminal
sanctions
on illicit trafficking in, possession of and use of drugs,
including
cannabis products. The legalization of soft drugs would
therefore
contravene international law.
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 Government of Bavaria also considers that the
provisions
objected to are compatible with the Basic Law.
c) The statements by the five Criminal Senats
submitted by
the President of the Federal Court of Justice also consider that
the
provision dealing with the delivery of cannabis products is
compatible
with the Basic Law, as does the statement by the Chief Federal
Prosecutor. A minority of the 5th Criminal Senat
considers the grounds given in the submission to be worthy
of
consideration, but, as regards the issue of constitutionality,
not
substantial enough.
2. In case 2 BvL 51/92 the Federal Minister of Health
has
referred to the statements in cases 2 BvL 43/92 and 2
BvR
2031/92 and has added the following:
The findings of the Hildesheim Landgericht fail to
consider
the fact that the Narcotics Act provides protection for health,
something particularly necessary for young people. This
protection can
only be comprehensively ensured if the unauthorized acquisition
and
possession of narcotics are also prosecuted as criminal offences.
For
large segments of the population, the legal prohibitions and
restrictions, as well as the relevant penalties and fines,
constitute an
important barrier to trying drugs and thus doing serious damage
to their
health and ultimately to society. Since society must bear the
negative
consequences of drug abuse, it should be permitted to defend
itself
against the causes (here: the acquisition of hashish for personal
consumption) by means of the criminal law.
3. With respect to the other cases submitted for review, the
Federal Government refers to the statements it has already
provided.
4. The Federal Minister of Health, the Government of Lower
Saxony
and the President of the Federal Court of Justice have made
statements
with respect to constitutional appeal 2 BvR 2031/92. They
consider the appeal-referring in part to the points already
made-to be
unfounded.
B.
The cases submitted are in essence admissible; the
constitutional
appeal is unconditionally admissible.
I.
1. There is no obstacle to the admissibility of review
submission
2 BvL 43/92 in the fact that the defendant in the original
case
restricted her appeal, with legal validity, to the penalty
imposed, so
that the guilty verdict-binding for the Landgericht
submitting
the case-became final.
It is true that, under Art. 100 Par. 1 GG and §
80 of
the Federal Constitutional Court Act [BVerfGG], a review
submission by a judge is only admissible if the validity of the
provision to be reviewed is relevant to the decision in the
original
case; in other words, if the result of the proceedings before
the court
depends on the validity of the provision. That is so if the court
submitting the case for review would come to a different decision
if the
provision were invalid than if it were valid (cf. BVerfGE
72, 51
<60 f.>; 80, 59
<65>; jurisprudence) This condition can also be fulfilled
in the
case of a penalty provision when a guilty verdict has become
final and
the appeal court has only to give a ruling as to the sentence.
That is
so in the present case. The review submission is based on the
view that
the appeal court can only punish the accused in accordance with a
guilty
verdict which has become final if the penalty is shown to be
constitutional.
2. Reservations are possible as to the admissibility of
review
submissions 2 BvL 51/92, 63/92, 64/92 and 70/92 because of
the
brevity of the grounds given in each for the decision to submit
the case
to the Federal Constitutional Court. The grounds given do not
constitute
independent discussion of the legal position and of the
interpretations
which have been developed in the relevant legal literature and
jurisprudence. These reservations are not however decisive in
deciding
whether the submissions are admissible. In all the
above-mentioned
submissions, reference is made to the decision of the Lübeck
Landgericht,
the basis of case 2 BvL 43/92, in that the findings of the
Lübeck
court
"are repeated" (2 BvL 51/92 and 70/92) or
"in support, reference is made to the decision of the
Lübeck
Landgericht (enclosed)" (2 BvL 63/92 and
64/92).
Even though the obligation set out in § 80 Par. 2 Sent. 1
BVerfGG to provide reasons for a review submission, which
is
intended to ease the load on the Federal Constitutional Court,
requires
that a submission should in general be comprehensible in itself,
the
references made here to another case prevent, exceptionally, the
submissions being declared inadmissible. When review submissions
2 BvL
51/92, 63/92 and 70/92 reached the Federal Constitutional Court,
the
decision of the Lübeck Landgericht had already been
submitted under the reference number 2 BvL 43/92, and had
also
already been published in the legal press. Given this situation,
the
obligation to provide grounds for a submission is met, in that
the
courts, being convinced of the unconstitutionality of the
relevant
penalty provisions for the same reasons which the Lübeck
Landgericht
had already presented to the Federal Constitutional Court in its
own
submission, referred to the Lübeck court's decision, which
was
indeed accompanied by detailed reasons. No relevant purpose would
have
been served by the courts simply copying out the decision of the
Lübeck
Landgericht, which had already been presented to the
Federal
Constitutional Court, to support their submissions. That is so
despite
the fact that the submissions relate to various different types
of
involvement with hashish. Given that they are applicable to any
prohibition by the criminal law of involvement with cannabis
products,
the findings of the Lübeck Landgericht with respect
to Art.
3 Par. 1 GG can be transferred to all the varieties of
offence
which are the subject of the cases submitted for review. This,
however,
justifies the admissibility of the submissions as a whole,
because in
the case of an admissible submission the obligation of the
Federal
Constitutional Court to review a case extends to all the
constitutional
considerations involved, even if they are not addressed in the
decision
submitted, or only to an insufficient extent (cf. BVerfGE
67, 1
<11>).
3. Review submission 2 BvL 80/92 is inadmissible, in
so far
as the Frankfurt am Main Landgericht has submitted for
constitutional review the more stringent penalty provisions, here
with
respect to hashish, of § 29 Par. 3 Sents. 1 and 2 Nr. 4
BtMG
in the earlier version (trafficking in a not insignificant
quantity of
narcotics) and of § 30 Par. 1 Nr. 4 BtMG (importation
of a
not insignificant quantity of narcotics) as such. The
Landgericht
has neither explained sufficiently why it considers the penalty
provisions as such to be unconstitutional-apart from general
objections
to any penalization of importing and trafficking in hashish--,
nor has
it clarified why determining the validity or invalidity of the
penalty
provisions is relevant to its decision.
a) Given the findings of the Landgericht, however, the
penalty provision in § 29 Par. 3 Sents. 1 and 2 Nr. 4
BtMG in the earlier version is applicable. This is so,
despite
the fact that this provision was cancelled by Art. 2 Nr. 2 Letter
b OrgKB
with effect from 22 September 1992 and has been replaced, under
Art. 2
Nr. 3 OrgKB, by the new
§ 29a BtMG, according to Par. 1 Sent. 1 Nr. 4 of
which
trafficking in not insignificant quantities of narcotics
henceforth
constitutes a special, more serious offence involving more severe
penalties than the basic offence set out in § 29 Par. 1
BtMG.
It is at least arguable for the Landgericht to view this
amendment as increasing the severity of the criminal law after
the fact,
and, in accordance with § 2 Pars. 1 and 3 StGB
, to consider § 29 Par. 3 Sents. 1 and 2 Nr. 4 BtMG
(earlier version), which was in force when the offence took
place, as
the less stringent and thus applicable law.
b) However, the Landgericht has not explained
sufficiently
why it considers that the provisions of § 29 Par. 3 Sents. 1
and 2
Nr. 4 BtMG (earlier version), in particular, violate the
Basic
Law, leaving aside general objections to the penalization of
trafficking in cannabis products as a whole.
In view of the manner in which § 29a Par. 3 Sent. 2 Nr.
2 BtMG
(earlier version) is interpreted by the criminal courts, the
criticism
that the penalty provisions of the Narcotics Act do not
differentiate
between "soft" and
"hard" drugs is clearly invalid. The courts do in fact
take
account of the varying extent of the danger posed by different
narcotics, specifically when determining what constitutes a
"not
insignificant quantity" (cf. the decision of principle given
by the
Federal Court of Justice in BGHSt 33, 8 ff.). The
objection
that the Act does not take account of the differing element of
wrong in
the various actions which it penalizes is clearly invalid where
the
provision submitted for review is concerned. In § 29 Par. 3
Sent. 2
Nr. 4 BtMG (earlier version), certain of the offences
listed in
§ 29 Par. 1 Sent. 1 Nr. 1 BtMG which the legislature
considers to be particularly dangerous and deserving of
punishment-including unauthorized trafficking in not
insignificant
quantities of narcotics-are set apart and made subject to more
stringent
penalties.
At most, therefore, consideration must be given to the
objection
that the penalties for trafficking in hashish are
disproportionately
strict. In this respect, the Landgericht fails to explain
why-assuming that the penalization of unauthorized trafficking in
hashish is basically constitutional-it is prevented by § 29a
Par. 3
Sents. 1 and 2 Nr. 4 BtMG (earlier version) from imposing
a
penalty which is commensurate with the level of wrongdoing and
guilt
associated with the offence. For one thing, the interpretation
given to
the term "not insignificant quantity" can serve to
achieve a
result which is constitutional; the Landgericht is here
not
legally bound by the ruling of the Federal Court of Justice and
can in
particular deviate from it if it considerers this to be necessary
for
the constitutional application of the provision. Furthermore, the
fact
that the Act only views the offence described in § 29 Par.
3 Sent.
2 Nr. 4 BtMG (earlier version) as a particularly serious
case of
trafficking in narcotics
"in general" makes it possible for a court to
refrain
from applying the higher penalty if, on the basis of a general
evaluation of all the circumstances of the case, this is
necessary in
order to impose a punishment which fits the crime and which is
therefore
in conformity with the Basic Law (cf. Körner,
BtMG, 3rd edition, § 29 Marginal nrs. 778 ff. with
list of
jurisprudence).
c) The same is true in so far as the Landgericht
submits
the penalty provisions in § 30 Par. 1 Nr. 4 BtMG for
review; here too, the court has not sufficiently explained why
this
point is relevant to its decision. A concrete procedure to review
legal
norms is only admissible if it is essential to enable a court to
reach
a decision (cf. BVerfGE 47, 146
<154>; 63, 1 <22>). This is not the case if it is
possible
for the court making the submission to interpret the relevant
provision
in such a way that it does not violate the constitution (cf.
BVerfGE,
76, 100 <105>). It is not apparent-nor is it stated in the
review
submission-why the Landgericht should be prevented from
interpreting the provision in § 30 Par. 1 Nr. 4 BtMG
in such a way as to exclude the necessity of imposing what
it
considers an inappropriately high penalty in view of the type and
quantity of the narcotic imported. This it could do by
considering the
upper limit of "a not insignificant quantity" to be
reached
not at the quantity of 7.5 grams of THC assumed by the Federal
Court of
Justice but only at a larger quantity, namely one exceeding that
in the
original case. Just as little explanation has been given for why
a less
serious case in the sense of § 30 Par. 2 BtMG should
not be
assumed, if application of the penalty provisions of § 30
Par. 1
BtMG would lead to an inappropriately high penalty in view
of
all the circumstances involved.
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.
1. The provisions of the Narcotics Act penalizing
unauthorized
involvement with cannabis products are to be tested against the
criterion of Art. 2 Par. 1 GG where the prohibition
enforced by
penalties is concerned and against Art. 2 Par. 2 Sent. 2 as
regards the
threat of imprisonment.
Art. 2 Par. 1 GG protects every form of human action
without taking into consideration what importance it has for the
free
development of the personality (cf. BVerfGE 80, 137
<152>). It is, however, only the core area of private life
which
enjoys absolute protection and is thus exempt from restriction
by the
powers of the state (cf. BVerfGE 6, 32 <41>; 54, 143
<146>;
80, 137 <153>). Because of its numerous social
consequences and
interactions, involvement with drugs, in particular intoxication,
cannot
be considered part of this core area. Furthermore, the general
right to
liberty is guaranteed only within the proviso set out in the
second
half sentence of Art. 2 Par. 1 GG and is thus specifically
subject to the proviso of the constitutional order (cf.
BVerfGE
80, 137
<153>). This comprises all legal norms which are formally
and
materially in accordance with the constitution (cf. BVerfGE
6,
32 ff.; jurisprudence) Restrictions on the general right to
liberty on
the grounds of such regulations do not violate Art. 2 Par. 1
GG
(cf. BVerfGE 34, 369, <378 f.>; 55, 144
<148>).
There is consequently no "Right to Intoxication" which
is
exempt from these restrictions.
Materially speaking-and unless special constitutional
guarantees
provide otherwise-the principle of commensurateness provides the
general
constitutional criterion according to which freedom of action may
be
restricted (cf. BVerfGE 75, 108, <154 f.>; 80, 137
<153>).
This principle gains increased significance when testing a
penalty
provision which, as the most drastic sanction at the disposal of
the
state, pronounces a social-ethical condemnation of a certain
action by
a citizen (cf. BVerfGE 25, 269
<286>; 88, 203 <258>).
If imprisonment is provided for, this makes possible
restriction
of the constitutional right to individual liberty, which is
protected
by Art. 2 Par. 2 Sent. 2 GG. Liberty of the individual,
which
the Basic Law terms "inviolable", is such an important
legal
right that the proviso in Art. 2 Par. 2 Sent. 3 GG (making
restriction of liberty possible only pursuant to a law) only
allows it
to be encroached upon for particularly important reasons. Leaving
aside
the fact that in certain circumstances such encroachment may also
be
allowed when intended to prevent the person involved from
inflicting
significant personal damage on himself (cf. BVerfGE 22,
180 <219>;
58, 208
<224 ff.>; 59, 275 <278>; 60, 123 <132>), it is
in
general only permissible if required, with due respect being
given to
the principle of commensurateness, for the protection of other
persons
or of society as a whole.
According to this principle, a law which has the effect of
restricting constitutional rights must be both suitable and
necessary
to achieve its intended aim. A law is suitable if it can help to
achieve
the desired result; it is necessary if the legislature could not
have
chosen another similarly effective measure which does not
restrict the
constitutional right involved, or does so to a lesser extent (cf.
BVerfGE
30, 292 <316>; 63, 88 <115>; 67, 157 <173,
176>). When
evaluating the suitability and necessity of the measure chosen to
achieve the intended aims, as well as when arriving at the
required
assessment and prognosis as to the dangers to the individual or
to
society, the legislature has a freedom of judgement
which-depending on
the nature of the matter in question, the available possibilities
for
forming a suitably certain judgement and the legal rights at
stake-can
only be reviewed by the Federal Constitutional Court to a limited
extent
(cf. BVerfGE 77, 170 <215>; 88, 203 <262>).
Furthermore, when measuring the seriousness of the
restriction
against the importance and urgency of the grounds justifying it,
the
limit of reasonableness for those to whom the prohibition is
addressed
must be respected (cf. BVerfGE 30, 292
<316>; 67, 157 <178>; 81, 70 <92>).
Consequently, the
measure may not form an unreasonable burden for them (prohibition
of
excess, or commensurateness in the narrow sense; cf. BVerfGE
48,
396 <402>; 83, 1 <19>). Where punishment by the state
is
involved, it follows from the principle of necessary guilt, which
is
based on Art. 1 Par. 1 GG (cf. BVerfGE 45, 187
<228>),
and from the principle of commensurateness, which can be derived
from
the principle of the rule of law and the right to liberty, that
the
penalty for a criminal offence must be commensurate with the
guilt of
the perpetrator. The nature and extent of the threatened penalty
may
not be per se incommensurate with the behaviour which is subject
to it.
The offence and the legal consequences must be appropriate to one
another (cf. BVerfGE 54, 100 <108>; jurisprudence).
It is fundamentally the task of the legislature, taking into
account the given situation, to lay down precisely what
constitutes
illegal behaviour. The Federal Constitutional Court cannot review
the
issue of whether the legislature's decision constitutes the most
effective, sensible or just solution; its task is simply to
monitor
whether the relevant penalty provision is actually in accordance
with
what is laid down in the constitution and whether it also
accords with
the unwritten constitutional principles and decisions of
principle in
the Basic Law (cf. BVerfGE 80, 244 <255>).
2. a) By means of the current Narcotics Act, as with its
predecessors, the legislature is attempting to protect the health
of
both the individual and the public as a whole from the dangers
connected
with narcotics and to protect the population, above all the
young, from
dependence on narcotics (cf. the grounds given in the government
bills
preparatory to the 1971 Narcotics Act, BRDrucks. 665/70
<new>,
p. 2, and to the 1981 Narcotics Act BTDrucks. 8/3551, p.
23 f.).
The penalty provisions of the Narcotics Act also serve this
aim. To
achieve it, the legislature does not only make those types of
behaviour
subject to penalties which constitute a direct danger to the
health of
individuals. Rather, what is involved is organizing communal
life in
such a way as to keep it free from the socially harmful effects
of
involvement with drugs, effects which are also produced by the
so-called
soft drug cannabis. It is through cannabis that young people, in
particular, are introduced to drugs; it encourages them to become
used
to intoxicants. It can hinder young people and adolescents in
establishing their personality.
This aim has since been considerably extended by
international
agreements. Specifically, the United Nations have recognized, in
the
1988 Convention on Narcotic Drugs and Psychotropic Substances,
that any
involvement with narcotics-including cannabis-should be subject
to
penalties because the production of narcotics and psychotropic
substances, the illicit demand for them, and unauthorized
involvement
with them "seriously endanger health and well-being and
damage the
economic, cultural and political foundations of society"
(Preamble
to the 1988 Convention on Narcotic Drugs and Psychotropic
Substances).
In particular, the Convention states that illicit involvement
with
narcotics and psychotropic substances exploits children as users
and
encourages organized crime,
"which undermines the legitimate economy and endangers the
stability, security and sovereignty of the state." This also
"leads to large financial gains and riches, making it
possible for
international criminal organizations to penetrate, poison and
corrupt
the structure of the state, legitimate commercial and financial
companies, and society at all levels." The United Nations
have
therefore decided to cooperate in removing the basic causes of
this
abuse,
"including the illicit demand for such substances and the
enormous
profits resulting from the illicit traffic in them." In
this
context, the countries of Europe, in which hardly any production
of
narcotics takes place, assume the task, above all, of combatting
the
demand for them. The Federal Republic of Germany has adopted
this
evaluation of the dangers by means of the Ratification Act on
the 1988
Convention on Narcotic Drugs and Psychotropic Substances and the
subsequent actual ratification and has made it the basis of the
obligation it has thereby assumed to combat involvement with
narcotics,
including by the imposition of penalties. In the light of these
agreements, the Narcotics Act is to be seen as the Federal
Republic of
Germany's contribution to the international control of narcotic
drugs
and psychotropic substances, to controlling involvement with
these
substances, and to combatting the illegal market in drugs and the
criminal organizations involved in it. These aims are the common
concern
of the community of states making up the United Nations and
according
to their unanimous conviction can only be successfully achieved
via
cooperation between them. Given this aim, the Narcotics Act
serves
communal interests which are protected by the constitution.
b) According to the legislature's evaluation, the dangers to
health
resulting from the use of cannabis products are considerable. In
the
government bill preparatory to the 1971 Narcotics Act, the
following is
stated in this connection (cf. BRDrucks. 665/70
<new>, p.
5 ff.):
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)."
c) The legislature's original evaluation of the dangers to
health
is now disputed. However, the assumption that cannabis products
are not
dangerous, which forms the basis of the review submissions, is
also
questionable.
c1) The basis for cannabis products are the herbaceous plants
of
the genus Cannabis (hemp). The best known is the annual
fibre
hemp (Cannabis sativa L.). The more intoxicating
Cannabis sativa varia Indica L. (Indian hemp), which is
common
particularly in India and throughout the orient, is also used.
The
substances contained in the Indian and the European varieties are
the
same, if cultivation takes place under similar conditions. The
psychotropic, oily active components are contained in the resin
exuded
by the small, spherical glandular heads. The plant is processed
to give
various cannabis products:
- 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):
1) Although the use of cannabis as an intoxicant has been
known for
a long time, it was not until the beginning of the sixties of
the
present century that cannabis products, in the first instance
marihuana, found their way into the youth scene in the USA as
part of
the "Flower Power" movement. Starting in 1967/68,
cannabis
also found a similar circle of consumers in Europe. Overall,
sales of
cannabis products seem to have remained unchanged in the Federal
Republic of Germany for the last 20 years, whereas the use of
so-called
"harder" drugs is increasing (cf. Geschwinde loc. cit.,
p. 14
marginal nr. 51).
(2) According to Geschwinde (loc. cit. p. 14, marginal nr.
52),
estimates of the number of current consumers in Germany vary
between
800,000 and two million; according to Körner (BtMG,
introduction marginal nr. 9) the number is between three and four
million. These are, however, largely occasional consumers. In a
survey
carried out by the Federal Ministry of Health in 1990, 56.7% of
the
users questioned stated that they had consumed cannabis on
between one
and five occasions during the previous year (cf. appendix 3 to
the
statement by the Federal Minister of Health in case 2 BvL
43/92).
(3) The main active component of the resin of the hemp plant
is
delta 9-tetrahydrocannabinol (THC). Since it was first
synthesized
(1964/65), laboratory experiments with it have generally used it
as the
sole active component, but in natural cannabis it is supplemented
by a
whole range of other active substances and aromatics, which also
influence the nature of its effect (cf. Geschwinde, loc. cit., p.
17
ff., marginal nrs. 60 to 76; Täschner, loc. cit., p. 59
ff.). The
concentration of the active component, which can vary greatly
according
to the origin and method of preparation, is less than 2% in the
case of
low quality marihuana (the plant as a whole), between 2 and 4% in
the
case of medium quality and 5% or more in the case of high
quality. In
the case of low-quality cannabis resin (hashish), the proportion
of
active component is less than 5%, in the case of medium-quality
hashish
between 5 and 8%, while in the case of high quality it can rise
to 10%
or more. In extracted hashish oil, the level of the active
component
ranges from less than 15% (low quality) to 70% (very high
quality; cf.
Körner, loc. cit., appendix C 1, p. 1066).
(4) In Germany, cannabis products are usually smoked mixed
with
tobacco. Cannabis can also be drunk as a "tea" or
dissolved in
ordinary tea, or eaten as a spice in food or in a cake. In the
case of
oral administration, the effect does not start to be felt until
approximately an hour later, whereas in the case of smoking it
commences
within minutes and reaches its maximum within 15 minutes. Some 30
to 60
minutes after smoking, the effect starts to wear off and after
three
hours has largely disappeared. In the case of oral
administration,
however, it can last for up to twelve hours. The effect of
cannabis is
dependent not only on the dose consumed but also, to an even
greater
extent than with other psychotropic substances, on the
psychological
mood (set) and the social environment (setting) (cf. Geschwinde,
loc.
cit. p. 28 f., marginal nrs. 102 to 105; Quensel, loc. cit., p.
381; Täschner,
loc. cit. p. 110).
(5) Descriptions of the concrete physical and psychological
effects
of both a single dose of cannabis and of continued consumption
differ,
at least in part (cf. Geschwinde, loc. cit., p. 21 ff.; Binder,
"Haschisch
und Marihuana", in: Deutsches
Ärzteblatt 1981, p. 117 ff.; Täschner, loc. cit.,
p. 117
ff.; statement by the Federal Public Health Department in case 2
BvL
43/92). Consequently, evaluation of the dangers of cannabis
consumption
to the individual and to society also differ (cf. on the one hand
Täschner,
loc. cit., pp. 241 ff.; on the other hand Quensel, loc. cit., pp.
386
ff.; the middle ground is represented by: Geschwinde, loc. cit.,
pp. 41
ff., and the statement by the Federal Public Health Department.)
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.>).
3. Although from the present perspective the dangers to
health
posed by cannabis products can therefore be seen as less
significant
than assumed by the legislature when the relevant legislation was
introduced, the current state of knowledge still indicates that
not
inconsiderable dangers and risks remain. The overall view of
cannabis
products which is embodied in the Narcotics Act must therefore
still be
considered constitutional. This is shown by the statements by the
competent authorities, namely the Federal Public Health
Department and
the Federal Criminal Police Office, as well as the relevant
literature-going well beyond the summaries quoted-evaluated by
the Senat.
The underlying premise of the Act is to subject any unauthorized
involvement with cannabis products, with the exception of actual
consumption, to comprehensive state control because of the
danger
caused by this drug and by drug trafficking to the individual and
to the
public at large, and to enforce this control by making
unauthorized
involvement with cannabis products, without exception, subject to
penalties. Given this premise, the penal provisions of the
Narcotics Act
are a suitable means of restricting the distribution of the drug
in
society and thus of reducing the resulting dangers overall. The
penalty
provisions are therefore fundamentally suited to achieving the
aim of
the legislation.
4. The legislature's evaluation-repeatedly reviewed and
confirmed
on the occasion of the various amendments to the Narcotics Act
and of
the ratification of the 1988 Addictive Substances Agreement-that
the
prohibition of unauthorized involvement with cannabis products,
together with penalties to enforce that prohibition, is also
necessary
to achieve the aims of the legislation, is also in accordance
with the
constitution. Similarly, the present state of knowledge, evident
enough
from the sources referred to above (cf. 3), indicates that the
position
of the legislature, namely that no equally effective but less
drastic
measures than the threat of punishment are available to achieve
the
aims of the legislation, is a valid one. It is not a valid
argument to
object that the current prohibition of cannabis has been unable
to fully
achieve the aims of the legislation and that the removal of
restrictions on the drug, as a less stringent measure, would be
more
effective. Debate still continues as to whether a reduction in
cannabis
consumption can be more effectively achieved by means of the
general
preventive effect of the criminal law or by the removal of
restrictions
and by the separation of the different markets for drugs which,
it is
hoped, will thus be achieved. There is as yet no compelling
scientific
evidence to confirm the validity of one or other approach. The
international agreements to which the Federal Republic of Germany
is a
party rely increasingly on the use of the criminal law to combat
drug
abuse and illicit involvement with drugs. Given this
international
legal development, it remains at the very least an open question
whether
removing the restrictions on cannabis products would succeed in
separating the different drugs markets within the national
context or
whether this would in fact lead to the Federal Republic of
Germany
becoming a new focus for the international drugs trade.
Similarly, it
is uncertain whether the disappearance of the
"appeal of forbidden fruit" or the introduction of
educational
measures to explain the dangers of cannabis consumption would
bring
about a reduction therein. Given this state of affairs, the
decision of
the legislature to uphold the view that a general prohibition of
cannabis reinforced by penalties deters more potential consumers
than
would the removal of the threat of punishment, and that such a
provision
is therefore better suited to protecting legal rights or
interests, must
be considered constitutional. This is because, in choosing
between
several potentially suitable methods of achieving the aims of
legislation, the legislature has a prerogative where evaluation
and
decision-making are concerned (cf. BVerfGE 77, 84
<106>).
It is true that under special conditions, cases are conceivable
in which
reliable criminological insights must be taken into account when
reviewing legislation to the extent that they force the
legislature to
deal in a particular way with a matter which it is
constitutionally
required to legislate on or to reject as a possible solution
those
regulations which have already been introduced (cf. BVerfGE
50,
205 <212 f.>). However, the opinions which have emerged
from the
controversy concerning penal provisions to enforce the
prohibition of
any involvement with cannabis products do not possess this
necessary
level of reliability.
5. In deciding whether the prohibition of excess
(commensurateness
in the narrow sense) is violated by the penal provisions of the
Narcotics Act whose constitutionality is under review in so far
as they
apply to involvement with cannabis products, a distinction must
be made
between the basic prohibition of involvement with cannabis and
the
enforcement of that prohibition by the threat of criminal
penalties for
the various offences. The legislature's general intention, namely
to
comprehensively prohibit involvement with cannabis products-with
certain
closely defined exceptions-does not in itself violate the
prohibition
of excess. It is justified by its goals, namely: to protect the
population, in particular the young, from the dangers to health
which
the drug involves; to protect them from the danger of
psychological
dependence on it; and therefore, above all, to take action
against the
criminal organizations which dominate the drugs market and the
damage
such organizations do to society. These important public concerns
are
not counterbalanced by equally important benefits to be had by
removing
restrictions on involvement with the drug.
This is fundamentally also the case where the legislature
employs
penalties under the criminal law as a means of enforcing the
prohibition. Violations of the prohibition of involvement with
cannabis
products are not merely a matter of disobedience to
administrative
regulations, in other words typical administrative offences;
rather,
they endanger important public interests which the legislature
aims to
protect. That the legislature considers these violations to both
deserve
and require punishment is based on plausible and objective
considerations.
Even when the legislature has preemptively enlarged the area
of
protection of the above-mentioned public interests (cf. supra
2.a) from
that of actual endangerment or even violation into that of
abstract
endangerment, there is fundamentally no constitutional
objection. The
offence provisions covering unauthorized involvement with
cannabis
products extend such protection comprehensively to all types of
behaviour which are in general likely to cause the dangers
described.
This is justifiable on the grounds of general prevention.
It is inherent to such comprehensive protection by means of
the
criminal law, however, that the offence provisions cover a range
of
violations which differ considerably in the nature and extent of
the
threat which they pose to the protected rights or interests and
in the
individual level of wrongdoing and guilt involved. Depending on
the
characteristics and effects of the drug, the quantity involved in
the
particular case, and taking into account other relevant
circumstances,
it may be that the extent of the threat to the protected public
interest
is so insignificant that the considerations of general
prevention which
justify the general threat of criminal penalties lose their
force. In
view of the right to liberty of the person concerned, and taking
into
account the individual guilt of the offender and the relevant
preemptive
aims of the policy on crime, it might be that the penalty would
then
constitute an excessive and therefore unconstitutional sanction.
The fact that the legislature's general intention, namely to
comprehensively penalize unauthorized involvement with cannabis
products, is to be seen as a suitable and necessary means of
ensuring
the protection of the legal rights and interests involved, does
not mean
that it is superfluous to examine this issue. Rather, the third
stage in
monitoring commensurateness is specifically intended to submit
measures
which have been recognized as suitable and necessary to review,
from a
different perspective, of whether they are still proportionate to
the
level of protection given to legal rights or interests, given the
resulting restrictions of the fundamental rights of the person
concerned. Accordingly, when tested against the criterion of the
prohibition of excess, it may turn out that a measure intended to
protect legal rights or interests, even though in itself suitable
and
necessary, may nevertheless be inadmissible because the resulting
restrictions on the fundamental rights of the person concerned
clearly
outweigh the increase in protection, to such an extent that use
of this
protective measure is to be considered disproportionate. It
follows,
therefore, that in certain circumstances the intended protection,
although in itself legitimate, must take second place if the
measure
employed would lead to a disproportionate restriction of the
rights of
the person concerned.
a) Seen in the light of these principles, the penalties set
out in
§ 29 Par. Sent. 1 Nr. 1 BtMG for trafficking in
cannabis
products do not violate the prohibition of excess. Trafficking,
more
directly than the consumption oriented contraventions detailed
in
§ 29 Par. BtMG, constitutes a primary and typical
example
of endangerment of the legal rights and interests of others and
therefore already constitutes the most dangerous type of
unauthorized
involvement with narcotics. Trafficking creates and maintains
the
demand for cannabis products, exploits the weakness and
dependence of
others and leads to uncontrolled distribution of the drug,
including
among persons who are at particular risk. Furthermore, it is to a
large
extent in the hands of international criminal organizations. In
view of
this, not only is the prohibition of trafficking commensurate in
the
narrow sense, but so is the use of penalties to enforce it.
b) In effect, the same goes for the delivery of cannabis
products
to other persons without charge and not for the purpose of
trafficking,
which is subject to penalties under § 29 Par. 1 Sent. 1 Nr.
1 BtMG.
Delivery also leads to the further spread of cannabis use and
thus
endangers the legal rights and interests of others. Admittedly,
the
danger which this offence constitutes is clearly less than that
involved
in trafficking, since cases in which cannabis products are given
away
are of less significance, even purely numerically, than cases in
which
they are sold. Nevertheless, the legislature is justified in
assuming
that this offence is also attended by potential danger. It is not
infrequent for delivery of the drug without charge to take place
in a
social environment in which persons are to be found who are in
particular danger, such as young people, persons who are
psychologically
unstable, or long-term consumers of cannabis products. In such
cases,
delivery of the drug opens the way to a social experience through
which
persons who do not as yet belong to the circle of consumers are
enticed
into drug consumption or through which existing psychological
dependence on it may be reinforced. In view of this, the threat
of
penalties for the delivery of cannabis products to third parties
without charge is justified by the public interest in preventing
the
uncontrolled distribution of the drug and remains within the
limits of a
sanction which is commensurate and reasonable for those
concerned. This
is especially so since the wide-ranging penalty provisions of
§ 29
Par. 1 BtMG mean that sufficient account can be taken of
the
particular level of seriousness of the offence in each individual
case.
In addition, the possibility exists, within the framework of
procedural
legislation, not to prosecute in cases of limited guilt and where
no
public interest would be served by doing so (cf. §§
153, 153a
StPO
).
c) Similarly, the penalties provided for in § 29 Par. 1
Sent.
1 Nr. 1 BtMG for unauthorized acquisition of cannabis
products
and the penalties in § 29 Par. 1 Sent. 1 Nr. 3 for
unauthorized
possession do not violate the constitutional prohibition of
excess.
c1) It is not only trafficking in cannabis products and
delivering
them to others without charge whose inherent dangers justify
assuming
an abstract danger to others. Unauthorized acquisition and
unauthorized
possession already endanger the legal rights and interests of
others in
so far as they make possible the uncontrolled transfer of the
drug to
third parties. The danger of such transfer even exists when the
offender
assumes that the acquisition and possession are only preparatory
to
personal use. In addition, it is precisely acquisition intended
for
personal use which creates the demand side of the illicit market
in
drugs. In view of the estimates of the current number of
consumers-between 800,000 and 4 million persons, who are in fact
primarily occasional users (cf. supra 2. c) c2)-- this cannot be
dismissed as insignificant. From the general point of view of
prevention, it is therefore justifiable, in terms of the
constitutional
prohibition of excess, that the unauthorized acquisition and
possession
of cannabis products for personal use should in general also be
subject
to the penalties of the criminal law, constituting as they do
wrongdoing
which deserves and requires punishment.
Precisely in these cases, however, the extent of the danger
to
legal rights and interests constituted by the particular offence
and
the level of individual guilt may be minor. That is particularly
the
case when cannabis products are acquired and possessed in small
quantities merely for occasional personal use. Such cases
constitute a
not inconsiderable proportion of the actions which are considered
offences under the provisions of the Narcotics Act. According to
the
"Report of the Federal Government on the jurisprudence in
accordance with the penal provisions of the Narcotics Act in the
years
1985 to 1987" (11 April 1989,
BTDrucks. 11/4329 p. 15), approximately a quarter of all
criminal proceedings instituted under the Narcotics Act are
halted,
either by the Public Prosecutor's Office or by the court. Some 80
to 90%
of these cases concern offenders with small quantities of
cannabis for
personal consumption who have committed the offence set out in
§
29 Par. 1 BtMG. It is likely that a considerable
proportion of
the proceedings which are halted concern cases of unauthorized
acquisition and possession, given that according to the Report of
the
Federal Government (loc. cit. p. 12) these offences are also the
basis
of 51% of convictions. According to the survey published by the
Federal
Ministry of Health in 1990, 56.7% of the cannabis users surveyed
stated
that they had consumed cannabis products on between one and five
occasions during the previous year. In view of all this, and in
spite of
the major overall significance which the total number of
small-scale
consumers has for the illicit drugs market, taken individually
each
small-scale consumer makes only a minor contribution to bringing
about
the dangers which prohibition of involvement with cannabis
products is
meant to avert. This may be otherwise, however, if the nature and
manner
of consumption is likely to encourage young people to use the
drug.
If acquisition or possession of cannabis products is
restricted to
small quantities for occasional personal use, then the concrete
danger
of the drug being transferred to third parties is in general not
very
significant. Accordingly, the public interest served by
punishment is as
a rule minor. In its effects on individual offenders, the
imposition of
penalties within the criminal law on occasional users of small
quantities of cannabis products and on those who are merely
trying out
the drug may lead to results which are unreasonable and, from the
point
of view of prevention, actually negative. It may, for example,
lead to
persons being driven into the drugs scene or to their developing
a
feeling of solidarity with it.
c2) Even taking into account such cases, the general threat
of
punishment for unauthorized acquisition and possession of
cannabis
products, justified on the grounds of general prevention, does
not
violate the constitutional prohibition of excess. The
legislature has
complied with this prohibition by making it possible for the
prosecution
authorities to take account of the individual element of
wrongdoing or
guilt being only minor in a given case by refraining from
imposing a
penalty or from instituting proceedings. Apart from the general
provisions of §§ 153 and 153a of the Code of Criminal
Procedure, which allow proceedings to be halted if the level of
guilt is
limited and no public interest is served by prosecution, the most
important relevant provisions are § 29 Par. 5 and now also
§
31a BtMG.
According to § 29 Par. 5 BtMG, the court can
refrain
from imposing a penalty under § 29 Par. 1 BtMG on an
offender who cultivates, produces, imports or exports narcotics
or
conveys them in transit or acquires or otherwise obtains or
possesses
them only in small quantities and purely for personal use. It is
obvious
that this provision is to be applied above all when an occasional
user,
or a person who is trying out the drug, is in possession of or
obtains a
small quantity of cannabis products, which are less dangerous
than other
common narcotics, purely for personal use, thereby constituting
no
danger to others. For the prosecuting authorities, this
provision gains
in practical significance because of the fact that § 153b
StPO
makes it possible to halt proceedings before the start of the
main
hearing if the preconditions set out in § 29 Par. 5
BtMG are fulfilled.
Moreover, as of 16 September 1992, the new § 31a BtMG
has been in force, making it possible to abandon proceedings
specifically in cases falling under the provisions of § 29
Par. 5
BtMG
if the offender's level of guilt is minor and no public
interest
would be served by prosecution. § 31a BtMG differs
from
§ 153b StPO in conjunction with § 29 Par. 5 BtMG
with
regard to the possibility of halting proceedings in that it
expressly
requires that the level of guilt on the part of the offender
should be
only minor and that there should be no public interest in his
being
prosecuted. In fact, these requirements will usually be met in
the case
of occasional personal use of cannabis products without other
persons
being endangered, so that the prosecution authorities-in
particular the
Public Prosecutor's Office, whose sole decision this is before
the
person involved is actually indicted-will then be required, in
accordance with the prohibition of excess, to refrain from
prosecuting
the offences detailed in § 31a BtMG. If, however,
the
offence constitutes a danger to others, for example because it
takes
place in a school, youth club, barracks or similar institution,
or
because it is committed by a parent or guardian, a teacher, or an
official charged with enforcing the Narcotics Act and gives
cause for
imitation, then there may be a greater level of guilt and the
public
interest may indeed be served by prosecution.
Since § 31a BtMG and the cases set out in
§§ 153 ff. StPO concern legally related
decisions
(prevailing opinion; cf. Kleinknecht/Meyer-Goßner, StPO,
41st ed., § 152, marginal nrs. 7 to 9; Schoreit in:
Karlsruher
Kommentar zur StPO, 3rd ed., § 152 marginal nrs. 23 to
25) it
would, however, be disturbing if, after § 31a BtMG
has come into effect, there continued to be such major
differences
in the practice with regard to halting proceedings as are
described in
the report of the Federal Government for the years 1985 to 1987
(cf. BTDrucks.
11/4329, p. 15, 21, 22, 26). In particular, the report found
differences with respect to what the courts considered to be a
small
quantity, something for which basic principles already exist in
the
jurisprudence on § 29 Par. 5 BtMG (cf. Körner,
BtMG,
3rd ed., § 29, marginal nrs. 806, 807), and in the treatment
of
persistent offenders (cf. Körner,
§ 29 BtMG, marginal nr. 811). The provision of §
31a
BtMG gives the Public Prosecutor's Office wide discretion
with
regard to abandoning preliminary proceedings without the
involvement of
the court; it therefore also opens up the possibility of guiding
the
actual practice of the various Public Prosecutor's Offices with
respect
to abandonment of proceedings by means of administrative
regulations.
Here, the Länder have a duty to ensure that the
practice of
the various Public Prosecutor's Offices with respect to
abandonment of
proceedings is essentially consistent (cf. also BVerfGE
11, 6
<18>; 76, 1
<77>). This is all the more so given that a matter is
concerned
which has a particularly serious effect on the individual, namely
that
of being made the subject of a criminal prosecution. Consistent
enforcement would no longer be guaranteed if the authorities in
the
various Länder, by giving general directives, were to
adopt
different practices in prescribing or restricting, according to
abstract
general characteristics, the prosecution of particular behaviour.
No definite information is available which would suggest that
there
are in fact continuing differences in the way § 31a
BtMG, too, is applied in the various Länder.
The
legislature will need to wait to see whether the new offence
provision
set out in § 31a BtMG and tailored specifically to
consumption will lead to an essentially consistent application of
the
law in this area or whether further legislation is necessary to
give
concrete form to the preconditions for abandoning proceedings.
c3) The legislature's decision to take account of the minor
level
of wrongdoing and guilt which certain offences involve by
restricting
the obligation to prosecute them does not violate the
constitution. The
legislature has two methods at its disposal with which to allow
for the
minor level of wrongdoing and guilt in specific groups of cases
and thus
to take account of the prohibition of excess. It can-for example
by
distinguishing separate, less serious offences-restrict the area
of
application of the general criminal penalties or it can make
special
sanctions available for cases of petty crime (material-legal
solution).
It can also, however, set limits to the obligation to prosecute
and make
it less strict (procedural solution). In principle, the
constitutional
prohibition of excess allows both solutions (cf. BVerfGE
50, 205
<213 ff.>). Nor does the procedural solution violate the
constitutional principles which arise from Art. 103, Par. 2 GG
.
The prohibition of ex post facto legislation which makes
an
action an offence or increases existing penalties is clearly not
affected. The principle that penalization must be in accordance
with a
law is adhered to; the limits of punishable behaviour are
determined by
the law, as are the restrictions on the obligation to prosecute.
This
situation is not altered by the fact that in the individual case
it is
incumbent on the prosecution authorities to apply the law.
Finally, the
principle of the certainty of the penal provision is ensured if
the
individual can see with sufficient clarity from the legislation
under
which conditions he makes himself subject to penalties and what
those
penalties are. These conditions are here fulfilled.
d) Where penalization of the unauthorized importation of
cannabis
products under § 29 Par. 1 Sent. 1 Nr. 1 BtMG is
concerned, there are no objections from the point of view of
commensurateness in the narrow sense. It is not unconstitutional
for the
legislature to base its decision in this area on a prevailing
public
interest with respect to health and crime prevention policy in
ensuring
that no illegal drugs are introduced into the territory of the
state and
that it therefore sees the special level of guilt attached to
unauthorized importation as justified by the fact that the
traffic in
narcotics, constituting as it does a particular danger to the
legal
rights and interests protected by the Narcotics Act, is an
international
activity and that the illegal cross-border traffic in narcotics
is one
of the typical forms that it takes. Every state which, like the
Federal
Republic of Germany, has entered into the international
convention on
combatting the traffic in drugs must make special efforts to
fulfil its
obligations to prevent in particular this illegal cross-border
traffic
and so demonstrate the solidarity with its fellow states which
is
necessary if the international drugs market is to be combatted
effectively. Where the importation of small quantities of
cannabis
products for personal use is concerned, reference is made to
what has
already been stated above (I.5.c) c2).
e) The same is in effect true of the penalization of
unauthorized
conveyance of narcotics in transit covered by § 29 Par. 1
Sent. 1
Nr. 5 BtMG. Although the effects on the domestic public
interest
of such unauthorized conveyance are less significant than those
resulting from prohibited importation, here too the legitimate
state
interest in effective control of the international traffic in
drugs, to
which the Federal Republic of Germany has committed itself in the
interest of effectively and cooperatively combatting the
international
drugs market, justifies the penalties foreseen in terms of the
principle of commensurateness. In this respect also, the
provisions of
the Narcotics Act provide sufficient opportunities to take
account in
individual cases of a low level of wrongdoing or guilt.
f) Finally, the provisions of § 29 Par. 3 Sents. 1 and 2
Nr. 4
BtMG in the version in force until 21 September 1992, in
so far
as they concern trafficking in not insignificant quantities of
cannabis
products, as well as the provision in
§ 30 Par. 1 Nr. 4 BtMG, in so far as it concerns the
importation of cannabis products in not insignificant quantities,
do not
contravene the prohibition of excess.
As has been explained above, the penalization in § 29
Par. 1
Sent. 1 Nr. 1 BtMG, in so far as it concerns trafficking
in
cannabis products, is compatible with Art. 2, Par. 1 and Art. 2,
Par. 2,
Sent. 2 GG. That being the case, there can be no
constitutional
objection to the fact that the law, here § 29 Par. 3 Sent. 2
Nr. 4
BtMG (in the earlier version), considered unauthorized
trafficking in a not insignificant quantity of cannabis products
as in
general a particularly serious case of trafficking in narcotics
and that
for this particularly serious case it provided, in § 29
Par. 3
Sent. 1 BtMG , for the penalty of a period of imprisonment
of
not less than one year. Given that trafficking in a considerable
quantity of cannabis products also involves significantly greater
dangers to the legal rights and interests protected by the
Narcotics
Act, the legislature is entitled to respond by means of the
threat of a
higher minimum penalty. In this context, it is not necessary to
go into
the question 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
foreseen in
§ 29 Par. 3 Sent. 1 BtMG. This ruling, after all,
does not
form part of the actual legislation but is the result of
interpretation
by the criminal courts. Should this interpretation, with respect
to the
minimum penalty, be incompatible with the principle of
commensurateness,
there is still nothing to stop any court from interpreting or
applying
the provision in such a way that it does indeed conform with the
constitution. Furthermore, the penalty provisions of § 29
Par. 3
Sent. 1 BtMG are not the subject of an admissible
submission.
For the same reasons, the provision of a special, more
serious
offence in § 30 Par. 1 Nr. 4 BtMG, in so far as it
concerns
the importation of not insignificant quantities of cannabis
products,
does not violate the principle of commensurateness. Here too, the
dangers associated with the considerable quantities involved
justify the
creation of a special, more serious offence subject to a higher
penalty.
With regard to the interpretation of the term "not
insignificant
quantity", the same is true as in the case of § 29 Par.
3
Sent. 2 Nr. 4 BtMG (earlier version). Here too,
furthermore, the
penalty provisions as such have not been submitted in an
admissible form
for constitutional review.
6. By means of the 1992 Act to amend the Narcotics Act, the
legislature has taken steps towards a "reform of the at
present
predominantly repressive legislation with respect to narcotics
abuse by
non-prosecution of dependent consumers" (BTDrucks.
12/934,
p. 1) and has correspondingly made a clearer distinction in the
area of
prosecution between dealers and consumers. In view of the open
discussion taking place in the fields of both science and
criminal
policy with respect to the dangers arising from cannabis
consumption
and the correct way to combat them (cf. supra I.2 c) and 4.), the
legislature is obliged to observe and review the effects of
current
legislation, also taking into account the experience of other
countries
(cf. BVerfGE 50, 290 <335>; 56, 54 <78>; 65, 1
<55
f.>; 88, 209 <309 f.>). In doing so, it must assess in
particular whether, and to what extent, the removal of
restrictions on
cannabis would lead to a separation of the different drugs
markets and
thus contribute to stemming the consumption of narcotics as a
whole or,
on the contrary, whether it is only resistance, enforced by
penalties,
to the drugs market overall and the organized crime which
controls it
which promises to be successful.
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.
1. The principle of equality before the law prohibits the
unequal
treatment of matters that are essentially equal, at the same time
requiring matters which are essentially unequal to be treated
unequally
according to their nature. It is basically up to the legislature
to
select those offences to which it attaches the same legal
consequence,
in other words which it wishes to consider legally equal. This
selection
must however be made in an objective manner (cf. BVerfGE
53, 313
<329>). What is objectively justifiable or not, speaking
from the
point of view of the principle of equality, cannot be determined
in an
abstract and general manner but only with constant reference to
the
nature of the actual matter which is to be regulated (cf.
BVerfGE 17, 122 <130>; 75, 108 <157>;
jurisprudence).
With respect to the area at issue here, namely narcotics
legislation, it was possible for the legislature, without
violating the
constitution, to decide that there were indeed reasons of such a
nature
and of such importance as to justify the different legal
consequences
with respect to involvement with cannabis products on the one
hand and
with alcohol and nicotine on the other.
2. The principle of equality before the law does not require
that
all drugs which are potentially equally harmful should be
prohibited or
permitted equally. In order to ensure legal certainty, the
Narcotics
Act follows the principle of the so-called positive list, meaning
that
all the substances and preparations prohibited by the Act are
listed
individually in schedules appended to it. In § 1 Par. 2 and
3, the
Narcotics Act provides for a procedure, under specific legal
preconditions, to extend the positive list or to allow exceptions
to the
general prohibition. It is not, however, required that the extent
of the
danger to health should constitute the only decisive criterion
for
inclusion in the positive list. Apart from the differing effects
of the
substances, the legislature can also take account, for example,
of the
various ways in which they can be used (for instance the misuse
of a
very wide range of chemicals, such as adhesives, solvents and
petrol,
for "sniffing"), the significance of the different uses
for
society, the legal and practical possibilities of successfully
combatting abuse, as well as the possibilities and requirements
of
international cooperation in controlling and combatting
narcotics and
the criminal organizations which traffic in them. It is
therefore
evident that the general principle of equality before the law
does not
demand that all narcotics should be permitted for general use
merely
because other substances which also damage health are in fact
permitted.
As far as the comparison between cannabis products and
nicotine is
concerned, there is already sufficient reason for differential
treatment
in the fact that nicotine is not a narcotic.
There are also important reasons for the differential
treatment of
cannabis products and alcohol. It is true that alcohol abuse
clearly involves dangers, both to the individual and to society,
which
are equal to or even greater than those involved in the
consumption of
cannabis products. Nevertheless, account must be taken of the
fact that
alcohol has a wide range of uses, something which is not true of
the
intoxicant parts and products of the cannabis plant. Substances
containing alcohol serve as foodstuffs and stimulants; in the
form of
wine they are also employed in religious ritual. In all cases, a
type of
use is dominant which does not lead to a state of intoxication;
the
intoxicant effect of alcohol is generally known and is largely
avoided
because of social control. In contrast, the consumption of
cannabis
products is primarily intended to bring about intoxication.
Furthermore, given the prevailing modes of alcohol
consumption in
Germany and the European cultural area, the legislature finds
itself in
a situation in which it could not effectively prevent the use of
alcohol. Art. 3 Par. 1 GG does not require that the
intoxicant
cannabis should therefore not be prohibited.
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.
Vice-president
Mahrenholz
is no longer a
member of the SenatBöckenförde
Böckenförde
KleinGraßhof Kruis Kirchhof Winter SommerDr. Karin
Graßhof
Karlsruhe, 14 March 1994
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.).
1. I cannot concur with the majority of the Senat
when, in
dealing with the question of the suitability of the
criminal
offence provisions under review, it asks merely whether the
general
prohibition, enforced by penalties, of involvement with cannabis
is
suited to furthering the aim of the legislation (I. 3.). A
criminal
offence provision is only suited to protecting a legal right or
interest if the actions which it makes offences actually threaten
that
right or interest. If an offence provision prohibits actions
which do
not harm the right or interest, then the latter cannot be
protected by
means of prohibition of such actions; to this extent it is
already
possible at this stage of the process of testing its
commensurateness to
determine whether a penal provision is constitutional or not.
However, given the wide variety of actions which may threaten
the
legal right or interest which it protects, an offence provision
can
only deal with those actions by setting out characteristics which
are
typical of them. In doing so, however-particularly in the case of
provisions penalizing those actions constituting endangerment
which are
already abstract --, it is not always possible to make a clear
distinction between dangerous and harmless actions. A prohibition
which
characterizes unauthorized behaviour in broad terms can also be a
suitable means of providing protection via the criminal law (cf.
II.
infra).
2. When reviewing the element of necessity, the
Senat
should, furthermore, have taken account of the fact that the
threat of
punishment, because of the moral condemnation it involves, is a
serious
restriction of the right to the free development of the
personality and
the liberty of the individual concerned, and that such
restriction is
only permissable if important, elementary communal rights and
interests
are at stake, protecting which is the task of the criminal law
(cf. BVerfGE
27, 18
<29>; 37, 201 <212>; 45, 187 <253>). It is only
the
violation of such rights and interests which is deserving of
punishment.
Because of its extremely intrusive nature, the criminal law is
not the
primary means of providing legal protection; rather, its
application as
ultima ratio is only necessary when certain behaviour,
beyond
its merely being illegal, is also particularly harmful and
unacceptable
in a well-ordered society, so that preventing it is therefore
especially urgent (cf. BVerfGE 88, 203
<258>). A wrong which amounts to no more than a formal
violation
of a legal prohibition does not deserve punishment and a penalty
is, for
that reason alone, unnecessary. Account must also be taken of
the fact
that the prohibition serves to protect legal rights and interests
whose
importance may be offset by the fact that in order to ensure such
protection, a social-ethical condemnation is pronounced on the
person
whose guilty behaviour threatens the right or interest involved
(cf.
also Sax, "Grundsätze der Strafrechtspflege", in:
Bettermann-Nipperdey-Scheuner,
Die Grundrechte, Vol. III, part 2, 1959, p. 909
<919>).
When deciding what is to be considered in this sense as
behaviour
deserving punishment, the legislature has a-restricted-freedom of
decision (cf. BVerfGE 37, 201 <212>). It is true
that the
constitutional system of values makes it possible to decide with
sufficient certainty what behaviour definitely belongs within
the core
area of the criminal law; equally certainly, however, various
less
serious offences fall outside this core area (cf.
BVerfGE 27, 18 <29>). Determining the grey area that
is
left-an area which, given the changing views on the evaluation of
behaviour within legal circles, is particularly subject to
alteration-is
the responsibility of the legislature. To that extent, the
Federal
Constitutional Court is not required to determine whether the
legislature has found the most sensible or just solution; it
merely has
to ensure that the legislature's decision is in accordance with
the
constitutional system of values and that it also accords with the
unwritten principles and decisions of principle of the Basic Law
(cf.
BVerfGE 27, 18 <30>; 37, 201
<212>).
3. The third stage in reviewing commensurateness deals with
the
question of whether the nature and severity of the penalty are
commensurate or whether the punishment constitutes an
unreasonable
burden in the individual case concerned; this is particularly
important
in cases in which defining unauthorized behaviour in broad terms
is a
suitable means of providing protection (cf. supra I. 1. and
infra II.
3. b) bb). In the limits it places on penalties, this
prohibition of
excess corresponds with the principle of necessary guilt (cf.
BVergGE
50, 205 <215>), in requiring that the consequences for an
offender
of his punishable offence are consistent with the gravity of his
individual guilt and the circumstances of the act itself. The
abstract
offence provision and other norms established by material law
(cf. for
example § 46 StGB ) or by the law on criminal
procedure
must therefore enact regulations which make it possible for the
prosecution authorities and the judge to formulate a response in
an
actual case which is proportionate to the level of guilt and the
degree
of danger involved and which does not constitute an unreasonable
burden
for the person concerned (cf. also BVerfGE 50, 205
<213 f.>;
54, 100 <109 f.>).
However, it is not the task of the third stage of testing
commensurateness, which serves solely to monitor results which
are
obviously untenable, to question whether a certain prohibition
which is
suitable and necessary to protect the legal right or interest
constitutes a disproportionate burden for the offender merely
because it
threatens punishment (and does not for example only
establish a
misdemeanour). This evaluation already takes place at the second
stage
of testing commensurateness. If one is dealing with a violation
of a
legal right or interest which is deserving of punishment
and if
it is necessary to make this violation subject to a penalty, then
a
prohibition which is a suitable means of protecting the right or
interest cannot constitute an unreasonable burden for the person
concerned merely because it threatens punishment.
II.
1. Legal rights or interests can be threatened by actions
posing
varying degrees of danger to them. These range from violation
via
actual endangerment to an (abstract) danger which is perceived
as such
based on experience of typical events. The criminal law punishes
actions
as being attacks on legal rights or interests-according to the
importance of the right or interest involved, its need for
protection,
and the possibilities for protecting it-not only if they
constitute
violations and actual endangerment but also if they typically
lead to a
danger to the protected right or interest (cf. Cramer, Der
Vollrauschtatbestand als abstraktes Gefährdungsdelikt,
1962,
p. 68). The provisions dealing with such abstract offences of
endangerment see the offender's attack on the protected right or
interest as constituted by the fact that his prohibited action
creates a
situation in which the right or interest is likely to be violated
or in
which it is actually endangered.
2. Such preemptive extension of criminal law protection by
punishing actions constituting abstract endangerment is
considered by
the legislature as suitable and necessary in order to safeguard
legal
rights or interests, particularly when the legislature's aim is
to
protect supraindividual rights or interests as fundamental
values of
society (for example the administration of justice, the
environment,
road traffic, banking). Penalizing actions which violate these
rights or
interests or which constitute an actual danger to them is
considered not
to provide sufficient protection. The danger to such legal
rights or
interests often arises precisely through wide-spread violation;
it is
the cumulative effect which threatens the right or interest
involved,
whereas the level of danger posed by the individual action is in
itself
often only insignificant. Against this background, every
individual
action makes its own contribution to threatening the right
or
interest. If, therefore, each individual action is made
punishable as
being an attack on a right or interest because it constitutes an
(abstractly dangerous) involvement in a series of events which
threaten
it, then this does not make the offender-unconstitutionally-the
subject
of criminal proceedings; he is not being punished along with
others for
the endangerment of a right or interest caused by those others
but for his own contribution.
3. However, the constitution sets limits to a development
which-as
a result of the ever-increasing differentiation of society and
of
technical progress-constantly extends preemptively the protection
provided by the criminal law for such legal rights or interests.
a) The principle of commensurateness can set limits here
because
of the elements of suitability and necessity which it contains.
For one
thing, provisions creating abstract offences of endangerment are
only
suitable and necessary to protect a legal right or interest if
the
nature and manner of the threat mean that the right or interest
concerned actually requires protection from abstract
endangerment. For
another, the prohibition, enforced by penalties, of abstractly
dangerous actions can only be deemed a suitable
means of protecting the right or interest if the prohibited
actions typically create the likelihood of a danger to it; this
is not
so in the case of actions which, for example, can only endanger
the
right or interest in exceptional circumstances and which only
create a
possibility of endangerment which is vague and essentially a
matter of
chance. It is only necessary for the prohibition of actions
constituting
abstract endangerment to be enforced by penalties if those
actions cannot be prevented, or their potential for danger
reduced, by
means of other, less drastic measures. The greater the distance,
for
example, between the prohibited (abstractly dangerous) actions
and
actual violation, the more possibilities for response the state
has and
the less frequently it is necessary for the most serious measure,
the
criminal law, to be called upon.
b) These distinctions cannot, however, be drawn with absolute
precision. No clear demarcation line can be drawn between actions
which
will in all likelihood damage the protected right or
interest-either
individually or cumulatively-and those where the likelihood is
less. Nor
is a definite assessment possible of whether the potential for
danger
posed by forbidden actions can be countered by means of less
drastic
measures. The legislature must make these distinctions within
the
framework of the discretionary powers which it enjoys with
respect to
assessment, evaluation and the enactment of legislation.
Constitutional
review extends in any case to determining whether the legislature
has
taken sufficient account of the factors mentioned and has made
use of
its freedom of assessment "in a justifiable manner" (
BVerfGE
88, 203 <262>).
aa) The legislature, for example, considers it proper to
institute
a system, graded according to the level of danger involved, with
which
to protect the public interest of traffic safety, which is
threatened by
alcohol consumption. This hierarchy involves an offence against
public
order (§ 24a StVG [Road Traffic Act], driving a motor
vehicle with a blood alcohol level of more than 80 millilitres),
an
abstract offence of endangerment (§ 316 StGB, driving
a
motor vehicle while unfit to do so), and an actual offence of
endangerment (§ 315c Par. 1, Nr. 1a StGB). The
legislature
currently considers dangers caused by alcohol consumption by
pedestrians or by drivers who have a blood alcohol level of less
than 80
millilitres to be of such slight danger to traffic safety that it
has
refrained from prohibiting them.
In the case of involvement in traffic after consuming
alcohol, the
different level of danger to the public interest posed by actions
which
threaten it preparatory to actual violation can be distinguished
from
one another with sufficient precision. Here, the legislature
finds
preconditions in social reality and in medical science which
allow it
to provide a variety of different protective measures. In
particular,
it is possible to classify with sufficient certainty the
different
potential for endangerment which various actions entail. It is
therefore
not difficult to exempt that category of road users from the
criminal
provision who have drunk a quantity of alcohol which experience
indicates does not make them absolutely unfit to be involved in
traffic
and who consequently endanger the public interest to a lesser
extent,
and to make those road users subject only to a public order
offence
provision.
bb) It is more frequent, however, for a legal right or
interest to
be threatened by behaviour which in real life takes the form of a
wide
range of actions involving different levels of danger but which
cannot
be dissected into categories of action each with a potential for
endangerment which is clearly greater or smaller. In such cases,
it may
be suitable and necessary for the legislature to treat the
abstractly
dangerous behaviour as such as deserving and requiring punishment
and
therefore to include it in the offence provision by setting out
its
typical characteristics, without necessarily granting a special
position
to the less dangerous types of action. One is only dealing with
an
offence provision which is too broadly defined, thus violating
the
principle of commensurateness, if the prohibited punishable
behaviour
does not sufficiently constitute an abstract danger.
4. In so far as the elements of suitability and necessity
contained
within the principle of commensurateness allow the material
criminal
law, according to these criteria, to typify abstractly dangerous
behaviour and to treat it without differentiation as deserving of
and
requiring punishment, the third level of the principle of
commensurateness, however, gains significance (cf. supra I. 3.).
The
more broadly an offence provision typifies actions which
constitute an
abstract danger to the legal right or interest, the more the
provision
is likely to include concrete behaviour which only endangers the
protected right or interest to an insignificant extent. For such
situations in which the element of wrongdoing is only slight, the
law
must provide means of responding which can prevent there being an
unreasonable burden for the person concerned in the form of
prosecution
or punishment as a result of the prohibition, even though this
prohibition as such is unexceptionable.
III.
1. I concur with the majority of the Senat in the view
that
the legal right or interest protected by the penal provisions
under
review is not only the preservation of health but also the
organizing of
communal life in such a way as to keep it free from the socially
harmful
effects of involvement with drugs, including those which are also
caused
by cannabis. The Senat lists the most serious examples of
such
socially harmful effects: the introduction of young people to
drugs and
the traffic in drugs, which is closely entangled with
international
criminal organizations and which penetrates and threatens
society at
all levels (I. 2. a). Another socially harmful effect of cannabis
consumption which cannot be ignored is that which it has on the
safety
of road traffic. As the Senat states, cannabis
intoxication has
a negative effect on one's fitness to be involved in traffic.
Given the
number of cannabis consumers, which is measured in millions, this
constitutes a not inconsiderable potential for danger (cf.
Maatz/Mille,
DRiZ 1993, p. 15 <24>), especially since there is as
yet
no comprehensive, rapid and practical method which can be
applied in
the road traffic context to determine whether cannabis is the
cause of
unfitness to drive and to define clearly to what extent that is
the case
(cf. Kreuzer, NStZ 1993, p. 209 <211>; Cologne
Oberlandesgericht,
NZV 1990, p. 439).
2. The Senat devotes considerable space to the point
that,
in the light of current knowledge, the dangers to health
resulting from
cannabis products appear to be less-for occasional users-than the
legislature assumed when it passed the relevant legislation. More
specific account ought then to have been taken of the fact that
although
the risk to the health of the many occasional consumers of small
quantities may be less, this still does not diminish the
significance of
the harmful effects which cannabis continues to have on society.
Regardless of whether cannabis has a "pacesetting"
function
for medical reasons, the actual social reality is that the vast
majority of heroin users had their first experience of drugs in
the
form of hashish, that long-term consumption of hashish causes
habituation and that it lowers the threshold with respect to hard
drugs
(cf. Geschwinde, in: Rauschdrogen, Marktform und
Wirkungsweisen,
2nd ed., 1990, p. 44; cf. also the statements by the Federal
Public
Health Department, the Chief Federal Prosecutor and the Criminal
Senats
of the Federal Court of Justice in case 2 BvL 43/92).
Children
are already finding their way into the world of drugs via
cannabis, and
at an increasingly earlier age. Even if the fact that many of
them later
descend into drug addiction is not the result of an actual
material
quality of cannabis, and that a predisposition or instability in
their
character caused by their social environment is in fact
responsible, one
is still dealing with a harmful social effect of the drug
cannabis,
which allows the predisposition to express itself. Finally, the
harmful
social effects of the international traffic in drugs, with its
criminal
methods, are not diminished by the fact that cannabis does not
constitute a serious risk to health for the consumer of small
quantities
who is not a long-term user. Even if such consumers were able to
obtain
their cannabis legally within Germany, that would still not stem
the
international criminal market, which traffics in both soft and
hard
drugs and thus in many cases actually creates the temptation to
change
over to harder drugs. It is likely that the market would even
attempt to
compensate for the loss of profits from cannabis by trafficking
in
larger quantities of hard drugs.
3. The principle of commensurateness raises the question of
whether
the legislature can justifiably assume that
- 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).
a) The damaging effects of cannabis, which society is to be
kept
free of, are to be found directly in its consumption and in the
international criminal market. This is a mass activity which
threatens
the protected right or interest precisely through its cumulative
nature.
Every consumer, in collaboration with the millions of others,
sustains
and supports the market. The more widespread the consumption of
cannabis, the greater the danger is that young people will
participate
or be enticed into consumption and thus become used to using
drugs; the
greater is also the probability that occasional users will
become
habitual users. The actions threatening the right or interest,
namely
consumption and the illicit market, are for constitutional and
practical
reasons difficult to tackle; the legislature therefore had good
grounds
for assuming that it could only effectively protect the public
interest
by prohibiting and penalizing-by preemptive extension of the
protection
offered by the criminal law-those actions which make consumption
possible at all and which sustain the market.
b) The provisions under review consider trafficking in
narcotics,
delivering, acquiring, possessing, or importing them or conveying
them
in transit to be abstractly dangerous types of action. No
distinction is
made as to whether only small quantities are involved which may
be
intended only for occasional personal use without other persons
being
endangered. On the other hand, trafficking in and importing not
insignificant quantities, for example, are considered to be
particularly
serious offences. Under points I. 5. a) to f), the Senat
argues,
in the context of testing the provisions against the prohibition
of
excess, that all these types of action involve potential
endangerment of
the legal right or interest which is to be protected. I concur
with
these findings as such. In my opinion, however, they should be
viewed
within the context of the considerations which I have set out. It
is
sufficiently certain that all these types of action endanger the
legal
right or interest which is threatened by mass consumption of
cannabis
products and criminal trafficking in them. Prohibiting such
actions is
therefore a suitable means of protecting the legal right or
interest.
c) aa) The right or interest to be protected is not only-as
argued
by Senat (I.2.a.)-- a common interest protected by the
constitution; more than that, it involves fundamental common
values.
The legislature is acting constitutionally when it considers
that
preserving that legal right or interest is particularly urgent.
It is
justified in assuming that it is of such importance as to make
necessary
the social-ethical condemnation inherent in the threat of
punishment.
bb) The legislature may also have good reasons for
considering
necessary the undifferentiated prohibition,
enforced by
penalties, of any involvement with cannabis products. It is true
that
the potential danger constituted by the various individual types
of
action may be of very varying importance depending on the type of
product involved and the aim of involvement with it. This is so
even if
the threat to the legal right or interest is considered to
consist
precisely in mass involvement and in the cumulative effect of
many
actions which, individually, are not in themselves particularly
dangerous. This consideration, however, would (at most) only
require
that undifferentiated prohibition, enforced by penalties, be
considered
unnecessary if sufficient protection could also be ensured, even
after
exceptions had been made for "less serious" cases by
countering the (lesser) dangers they pose with a simple
prohibition or
perhaps by penalizing them as public order offences. The
legislature
did not, however, have to assume this. It could take account of
the fact
that the group of cases involving only a slight level of danger
may
perhaps be separable from the generally prohibited types of
behaviour in
theory, but that differentiating such cases clearly from more
dangerous
types of action is in practice hardly possible because
determining the
preconditions (involvement with small quantities for occasional
personal
use by persons whose personality is already established, without
others
being endangered) would cause considerable difficulty. A
special, less
serious offence in the material criminal law defined according
to these
preconditions could be exploited, thus calling into question the
whole
concept of protection. An occasional user of cannabis products,
namely,
cannot easily be distinguished from a habitual consumer. Is
someone, for
example, who uses cannabis regularly once a month to be placed in
the
latter category, whereas someone who-without habitually doing
so-periodically consumes it once a week is considered merely an
occasional user? It is also hardly possible, in an individual
case, to
determine whether someone found with a small quantity who claims
that he
falls into a privileged category is telling the truth, or whether
he has
in fact simply split up the larger quantity which he has for
sale. He
may even be an habitual user who-by exploiting the privilege-is
successively acquiring a series of small doses. To prevent such
evasion
and thus to ensure the effectiveness of protection by means of
the
criminal law, the small quantity with which one would be
permitted to be
involved without punishment would need to be related to
particular time
units (days, weeks, months). In practice, this is impossible.
d) Accordingly, the legislature may assume that imposing a
prohibition, wide-ranging and enforced by penalties, of
involvement
with cannabis is a suitable and necessary means of protecting
society
from the seriously harmful effects which result from the drug. At
the
same time, the prohibition of excess and the principle of
necessary
guilt require that legal methods must be available allowing
measures to
be taken in each particular case which are commensurate with the
wrongdoing involved in the individual action and the level of
guilt of
the offender. As explained by the Senat, such responses
are
provided for by the legislation currently in force, namely
§§
153, 153a StPO, § 29 Par. 5 and since recently §
31a
BtMG.
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.
1. This conclusion, in my view a necessary one, does not go
beyond
the bounds of the competence of the Federal Constitutional Court
to
review legislation.
The Federal Constitutional Court consistently assumes in its
judgements that there is a grey area between criminal wrongdoing
and
infringement of public order, that in this area there are only
differences of degree between the different types of wrongdoing
and
that it is consequently the task of the legislature to fix the
precise
details of the line of demarcation. To this extent, the Court
merely
monitors whether the legislature's decision is in accordance with
the
constitutional system of values and also with the unwritten
constitutional principles and decisions as to principle enshrined
in the
Basic Law (cf. BVerfGE 80, 182 <185 f.>). These
constitutional principles include the prohibition of excess (cf.
BVerfGE
51, 60 <75>). The application of this criterion, which
incorporates in itself the elements of proportionateness and
reasonableness, necessarily requires that the Federal
Constitutional
Court should carry out its task of normative monitoring by
handing down
its own, evaluative decision. Under special circumstances, this
can
lead to the result that-in view of the level of wrongdoing and
possible
guilt involved-the application of the criminal law to certain
behaviour
would mean an inappropriate restriction of the rights of the
person
concerned and must therefore be refrained from (cf. BVerfGE
50,
205
<212 f.>).
2. a) The aim of the legislature in instituting the penal
provisions of the Narcotics Act, alongside the separate offences
relating to actions carried out while in a state of intoxication
(cf.
for example §§ 315c, Par. 1 Nr. 1 letter a, 316, 323a
StGB),
is to protect individuals, in particular young persons, from
serious
damage to health resulting from drug addiction, to save families
from
the disruption caused by the addiction to drugs of one of their
members
and to save society the price which an unrestricted wave of drugs
would
demand of it (cf. the grounds given in the government bill of 18
December 1970 preparatory to the BtMG, BRDrucks
[Federal
Government Publication].
665/70 <new>, p. 2; cf. also § 1 Par. 2 Sent. 1
Nrs.
1 and 3 BtMG). In relation to cannabis products, the
legislature
assumed that there was a potential for danger in three respects.
Although long-term consumption of cannabis may not lead to
physical
dependence, the harmful side-effects are nevertheless so unclear
that it
would not be justifiable to make it freely available; long-term
use can
lead to altered consciousness and psychological dependence;
finally, it
can be assumed that the drug is very likely to have a
"pacesetter
function" (cf. grounds given in the government bill of 18
December
1970 preparatory to the BtMG, loc. cit., p. 5 f).
According to the findings of the Senat (cf. opinion
C.I 2.c
and 3), this evaluation of the dangers is nowadays disputed. The
dangers posed by cannabis products to the legal rights or
interests
protected by the Narcotics Act would appear to be less serious
than was
assumed by the legislature when it passed the Act. The direct
damage to
health caused by moderate use should, rather, be considered as
insignificant. Whereas the development of physical dependence is
generally denied, the possibility of slight psychological
dependence is
hardly in dispute; even so, the potential for addiction involved
in
cannabis products is categorized as very slight. The
"pacesetter"
thesis is nowadays rejected by the majority opinion. What remains
is
essentially the possibility that cannabis causes the so-called
"amotivational syndrome", a side effect of long-term
use by
young people and by adults who are psychologically predisposed
and of
the long-term use of large doses. Whether the drug cannabis has
a
causal role in this connection is, however, an open question.
b) Given this state of scientific knowledge, the
legislature's
evaluation of the danger, an evaluation which is subject, it is
true,
only to restricted monitoring by the Federal Constitutional Court
(cf.
BVerfGE 88, 203 <262 f.>), can in my opinion no
longer
remain unaltered where cannabis products are concerned. The
legislature,
which has an obligation to observe, review and revise (cf.
BVerfGE
65, 1 <55 f.>; 88, 203 <309 f.>), must already make
corrections-namely to the material offence provisions submitted
for
constitutional review-in order to remove a violation of the
prohibition
of excess; it is not sufficient merely for further observation
and
monitoring to be carried out in the future (cf. judgement C.I.6.
and infra
b4) (1)). In any case, however, it is my opinion that the
Senat
ought only to have determined the constitutionality of the penal
provisions, in the extent pointed out by me at the start, on the
basis
of a broader, more up to date and consequently more convincing
factual
foundation (cf. infra b4) (2)).
b1) When the matter is being measured against the prohibition
of
excess, consideration must first of all be given, on the side of
the
potential offender, to the particularly drastic nature of the
restriction of his constitutional rights involved in even the
mere
threat of punishment by the state (cf. supra I.).
Furthermore, a
distinction must be made between the various forms of involvement
with
cannabis, in so far as they are the object of the proceedings:
As a result of the passing on of cannabis (trafficking
,
delivery to others), recipients may also be put in danger
who
are not entirely capable of responsibility. The law, it is true,
foresees penalties for passing on cannabis to all
recipients.
This breadth of the definition of the offence as an
"abstract offence of endangerment" is to be explained
by the
view that opening up a confused market already makes the drug
available
to persons in whose case responsible consumption cannot be
assumed.
In so far as the Narcotics Act also penalizes forms of
involvement
with cannabis which are not from the outset commercially oriented
(here:
importation, conveyance in transit, acquisition
,
possession) the reason for the penalty, also in the view
of the
Senat (cf. opinion, C.I.5.c) c1)) --including with respect
to
groups which are at risk-is not to be found in any
self-endangerment on
the part of the consumer. In seeing these types of behaviour as
leading-indirectly-to endangerment of third parties, the Senat
(cf. judgement loc. cit.) bases its view essentially on
two
considerations. Importation, conveyance in transit, acquisition
and
possession of cannabis can be construed as preliminary steps to
passing
it on, so that such behaviour always involves the (abstract)
danger of
trafficking or delivery to third parties, actions which
themselves
constitute endangerment. Secondly, these types of behaviour can
be seen
as participation in the international drugs market, something
which
helps maintain this market and the resulting dangers which it
causes.
Both of these theses add to the various offences of passing on
cannabis,
which are already taken to be abstract offences of endangerment,
a
further level of abstract endangerment (cf. Michael Köhler,
Freiheitliches Rechtsprinzip und
Betäubungsmittelstrafrecht,
ZStW 104 (1992), p. 3 ff. <39>).
Finally, the Senat considers that small-scale
consumers
are also contributing to possible endangerment, in that the
nature and
manner of their consumption may be such as to tempt young people
to use
the drug (cf. opinion C.I.5.c)c2)). Since the actual consumption
of
cannabis is not subject to penalties, this view can only be based
on the
concept of a further (third) level of abstract endangerment.
b2) Whether cannabis plays a causal role in the impairment of
the
psychological health of risk groups (the
"amotivational syndrome"), something which cannot be
ruled out
as a side-effect of long-term consumption, is uncertain.
Nevertheless,
the imposition of penalties for passing on the drug directly to
young
people is unexceptionable (cf. Art. 6 Par. 2 Sent. 2 GG).
From
the point of view of the responsibility of the individual for a
(vague)
danger, it may already be problematical that when someone who
passes on
cannabis is penalized, behaviour is being punished which is
not
precisely defined. In any case, the imposition of penalties
for the
importation, conveyance in transit
,
acquisition and possession of cannabis products
gives
cause for reservations. Here, it is not only the dangers which
are
uncertain. Rather, such offenders are also a legal step further
removed
from a (possible) danger; the assumption of abstract
endangerment,
deserving punishment, is based on the general assumption that
the drug
will be passed on. This assumption, and the consequent
supposition of a
danger, are particularly questionable where small quantities of
the
drug for personal consumption are concerned. Since the Narcotics
Act
does not provide penalties for consumption as such, the same
goes for
the Senat's thesis that the dangers seen by the
legislature
could also be caused by the nature and manner of consumption
because
young people might be enticed into using drugs.
b3) Without the assumption that cannabis products endanger
health
(including psychological health) and the undisrupted development
of
personality by young people, there would already be no
constitutionally
valid basis for prohibiting involvement with cannabis. In my
view,
therefore, reference to the harmful effects on society of the
criminal
drugs market resulting from prohibition cannot of
itself-independently-justify the threat of penalties within the
framework of the Narcotics Act for the forms of involvement with
cannabis which are at issue here, namely those directed
exclusively
towards consumption.
b4) The conclusion that the provisions of § 29 Par. 1
Sent. 1
Nrs. 1, 3 and 5 BtMG are in part unconstitutional
presupposes
that the restriction of the rights of those concerned is clearly
disproportionate to the extent of the danger which is to be
combatted
and is therefore unjustified. The objections arising within the
framework of constitutional review must therefore take on
special
weight.
(1) In my view, the limit of what is justifiable has been
exceeded
in so far as the importation, conveyance in transit, acquisition
and
possession of small quantities of cannabis products 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.
c) The obligations of the Federal Republic of Germany in
international law are also no reason for me to abandon my
position.
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.
1. An objection to the "procedural solution"-apart
from
the problem, also mentioned in the opinion (C.I.5.c)c2)), of the
considerable differences between the various federal
Länder
with respect to halting proceedings-is to be found in Art. 103
Par. 2
GG.
This obliges the legislature to specify the preconditions for
penalization so concretely that the scope and area of
application of
the provisions can be clearly recognized. This obligation does
not only
serve to protect those to whom the provision is addressed.
Rather, it
is also intended to ensure that it is the legislature
itself
which decides on whether certain behaviour should be penalized.
Leaving
this decision to the executive or the judicial power would be
incompatible with the constitutional principle that any decision
on the
restriction of fundamental rights, or on the preconditions for
such
restriction, is to be taken by the legislature and not by the
other
powers (cf. BVerfGE 47, 109 <120>; 75, 329
<341>;
87, 363 <391>; jurisprudence).
This principle, it is true, does not undermine the
admissibility
of provisions which make the obligation to prosecute less
stringent in
individual cases (cf. Hans Faller, "Verfassungsrechtliche
Grenzen
des Opportunitätsprinzips im Strafprozeß", in:
Festgabe
für Theodor Maunz zum 70. Geburtstag, 1971, p. 69 ff.
<80>).
If, however, the prosecution authorities are required to display
a
reserve which amounts to the correction by means of legal
procedure of a
too widely defined offence, then they are no longer being called
upon to
decide merely on the opportuneness of prosecution in individual
cases
but are themselves laying down what is to be considered subject
to
penalties. I consider that this transgresses the limit which Art.
103
Par. 2 GG imposes (in its function as the special
expression of
parliament's competence) on such implementation of statutory
penalties
when it restricts the procedural principle of legality.
If criminal behaviour is more broadly defined in legislation
than
it is intended to be, or can be, prosecuted, the actual practice
of
prosecution might, furthermore, create the impression that in so
defining it, the legislature did not take that behaviour entirely
seriously. If the criminal law is applied in this manner for the
merely
"symbolic" solution of problems, there is the danger
that it
will also lose its force where it really is necessary (cf.
Wolfgang
Frisch, "An den Grenzen des Strafrechts", in:
Beiträge
zur Rechtswissenschaft, Festschrift für Walter Stree und
Johannes
Wessels zum 70. Geburtstag, 1993, p. 69 ff. <95 f.>).
2. Furthermore, the reference by the Senat to
regulations
making it possible for the prosecuting authorities and the court
to
refrain from bringing a prosecution, to halt proceedings, or to
refrain
from imposing a penalty does not take sufficient account of the
fact
that it is not merely the imposition and enforcement of
punishment by
the state which are in particular need of justification with
respect to
constitutional rights to liberty. Even indicating that certain
behaviour
is subject to penalties or opening preliminary proceedings have
a
constitutional relevance. Every penal provision gives the police
(§
163 Par. 1 StPO), the prosecuting authorities and the
judge
power over the fate of others, even if no charge or sentence
eventually
results. Penalization, as such, of certain behaviour already
produces
suffering;
"through the obscure area of the associated extortions and
personal
humiliations; through the critical peripheral areas which every
offence
contains; through the legal and extra-legal consequences for the
offender of the criminal law's response" (Ernst-Walter
Hanack, Empfiehlt
es sich, die Grenzen des Sexualstrafrechts neu zu bestimmen?,
Gutachten
für den 47. Deutschen Juristentag, 1968, A 35). Under
the
current legislation on criminal procedure, the abandonment of
preliminary proceedings, which the Senat, also, considers
constitutionally necessary in certain cases because of the
prohibition
of excess, cannot be enforced by the individual, by means of an
appeal,
in order to protect his basic rights. For this reason also, it is
the
material criminal law which must decide what is deserving
of
punishment and what is not.
Sommer