Austria: cannabis ban before the Constitutional Court

In Austria, possession of even the smallest amount of cannabis is punishable by law. is a punishable offence. However, the ban on cannabis is being challenged and will be decided by the country's Constitutional Court.

Right to privacy and self-determination

On the basis of an individual petition from October 2021, the Constitutional Court (VfGH) has initiated proceedings to examine the compatibility of the cannabis ban with the Austrian constitution (G 323/2021-3, V 252-253/2021 ). The purpose of the proceedings is to determine whether the current Austrian Narcotics Law (SMG), which also criminalizes the private use of cannabis without profit, is constitutional.

Petitioner Paul Burger was caught walking with half a joint at the end of 2020 and subsequently approached the Constitutional Court in October 2021 as an individual petitioner. According to the petitioner, transactions with cannabis that do not harm others should be protected by the right to privacy and self-determination. With the help of lawyer Dr. Helmut Graupner, known for having pushed through marriage for all, Paul Burger initiated proceedings before the Constitutional Court.

«We believe that criminalization doesn't work,» says Graupner. He explains that this «crime» ends up absorbing a large part of police work.

«Legalization or decriminalization would free up the police and authorities to deal with the real issues, since 80 % of drug offenses are ultimately only for personal use. It's a waste of taxpayers» money", he adds, all the more so as a majority of Austrians are in favour of legalization.

A decision expected in 2022

On January 31, 2022, the Constitutional Court asked the federal government to justify a total ban within eight weeks. Specifically, this concerns that part of the SMG which criminalizes the private use of cannabis. It is then up to the judges to decide whether or not the applicable laws are unconstitutional.

The decision will be based in particular on a number of Supreme Court rulings from other countries, such as the Mexico, l’Italy, l’South Africa or the Georgia, who already have a constitutional approach to dealing with cannabis. Visit neighbouring Germany has also decided to legalize cannabis.

The decision of the Constitutional Court, which could decide to at least partially decriminalize cannabis use, is expected in the second half of this year.