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

Federal Constitutional Court

IN THE NAME OF THE PEOPLE

In the cases

  • 1. for constitutional review of whether § 29 Par. 1 Sent. 1 Nr. 1 (type of action: delivery) in conjunction with § 1 Par. 1 and the appended Schedule I (cannabis resin - hashish -) BtMG of 28 July 1981 (BGBl. [= Bundesgesetzblatt = official publication] I p. 681; announcement p. 1187) is compatible with Art. 2 Par. 1 in conjunction with Art. 1 Par. 1, Art. 2 Par. 2 Sent. 1 and Art. 3 Par. 1 (principle of equality before the law) of the Basic Law
  • 	- 2 BvL 43/92 -,
    
    
  • 2. for constitutional review of whether § 29 Par. 1 Nr. 1 (type of action: acquisition) in conjunction with § 1 Par. 1 and the appended Schedule I (cannabis resin) BtMG is compatible with Art. 1 Par. 1, Art. 2 Par. 1, Art. 2 Par. 2 Sent. 1 and Art. 3 Par. 1 of the Basic Law
  • 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:
    
    
  • 1. The submission by the Frankfurt am Main Landgericht of 19 October 1992 is inadmissible, in so far as it submits for constitutional review the range of penalties provided for in § 29 Par. 3 Sents. 1 and 2 Nr. 4 of the Narcotics Act in the version in force until 21 September 1992 as well as § 30 Par. 1 Nr. 4 of the Narcotics Act.
  • 2. § 29 Par. 1 Sent. 1 Nr. 1 of the Narcotics Act of 28 July 1981 (BGBl. I p. 681, 1187), in so far as it foresees penalties for unauthorized trafficking in, importation of, delivery of and acquisition of cannabis products;
  • § 29 Par. 1 Sent. 1 Nr. 3 of the Narcotics Act, in so far as it makes punishable the possession of cannabis products;
  • § 29 Par. 1 Sent. 1 Nr. 5 of the Narcotics Act, in so far as it makes punishable the unauthorized conveyance in transit of cannabis products;
  • § 29 Par. 3 Sents. 1 and 2 Nr. 4 of the Narcotics Act in the version in force until 21 September 1992 as well as § 30 Par. 1 Nr. 4 of the Narcotics Act, in so far as those provisions relate to trafficking in and importation of cannabis products and are the subject of an admissible submission,
  • are compatible with the Basic Law.
  • 3. The constitutional appeal is dismissed.
  • 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
    
    
    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 
    
    
  • (1) A person who
  • 1. cultivates, produces, or traffics in narcotics, or who, without trafficking in them, imports, exports, or offers for sale narcotics or who delivers them or otherwise puts narcotics into circulation or who acquires or otherwise obtains them without being permitted to do so in accordance with § 3 Par. 1 Nr. 1
  • 2. ...
  • 3. possesses narcotics without having obtained them on the basis of a permit in accordance with § 3 Par. 1
  • 4. ...
  • 5. contrary to § 11 Par. 1 Sent. 2 conveys narcotics in transit ...
  • shall be punished with a term of imprisonment of up 
    
    to five years 
    
    or with a fine.
    
    § 29a Offences 
    
    
  • (1) A person who
  • 1. ...
  • 2. traffics in a not insignificant quantity of narcotics without being permitted to do so in accordance with § 3 Par. 1 Nr. 1, produces, delivers or possesses a not insignificant quantity of narcotics without having obtained them on the basis of a permit in accordance with § 3 Par. 1
  • shall be punished by a term of imprisonment of not less than one year.
  • (2) In less serious cases the punishment shall be a term of imprisonment of between three months and five years.
  • § 30 Offences
  • (1) A person who ...
  • 4. imports a not insignificant quantity of narcotics without being permitted to do so in accordance with § 3 Par. 1 Nr. 1
  • shall be punished by a term of imprisonment of not less than two years.
  • (2) In less serious cases the punishment shall be a term of imprisonment of between three months and five years.
  • 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 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, t