German judge challenges constitutionality of cannabis ban

On Friday, the Federal Constitutional Court (BVerfG) was filed a proposal to ban cannabis. Judge Andreas Müller of the Bernau District Court believes that the ban on cannabis in Germany is unconstitutional and intends to prove it before the country’s highest court.

Judge Müller has been advocating for the legalization of cannabis for many years. As early as 2002, he had called on the Federal Constitutional Court (BVerfG) to review whether the ban on cannabis was compatible with the German Basic Law. At the time, the BVerfG had deemed the judge’s petition inadmissible, in part on the grounds that it was itself bound by a previous decision from 1994 pursuant to Section 31(1) of the Federal Constitutional Court Act. Judge Müller had thus not presented any new facts «that would allow for a decision deviating from the Federal Constitutional Court’s previous conclusions,» the BVerfG stated in 2004.

For a new appeal to the Constitutional Court to be admissible, Judge Müller must now prove that there have been «new facts» since 1994. Decriminalizations or legalizations in Portugal, in Uruguay, in Canada and in eleven U.S. states show, according to Müller, that criminalization is «not necessary» to achieve objectives such as the protection of minors.

In the foreword to his 140-page thesis, Judge Müller explains that »it is imperative that the Federal Constitutional Court, which has not addressed the ban on cannabis for more than 26 years, examine the question of whether the persecution of millions of people in the Federal Republic of Germany for cannabis use is still appropriate and meets the requirements of a free society and the mandate of the Basic Law, particularly with regard to the protection of minorities.»

Müller argues, among other things, that there is now evidence that the risks associated with cannabis must be assessed differently than in the past: «The clearest and most up-to-date expression of the reassessment of the risks associated with cannabis can be found in the WHO Expert Committee, which published a report in 2018 A critical report on the current classification of cannabis. »

Müller also refers to «the general assumption that cannabis use leads to a deterioration in mental health,» which cannot be proven.

«Although it can be shown that the most problematic individuals use cannabis particularly frequently, it is not possible to find evidence of a harmful effect of cannabis,» the judge’s report states. «Furthermore, it should be noted that «given the millions of users, relatively few seek outpatient care or are hospitalized due to a cannabis-related diagnosis.»”.

According to the judge in Bernau, the criminalization of approximately four million cannabis users in Germany not only violates many of the fundamental rights of those affected, such as the «right to intoxication» under Article 2, paragraph 1, of the Grundgesetz. It also results in «immense costs for the state and society due to the disproportionate nature of the criminal penalties.» Over several pages, Müller examines the relationship between cannabis and alcohol from the perspective of fundamental equality (Article 3 of the Grundgesetz), concluding: «The different treatment of cannabis compared to alcohol must be considered highly arbitrary.»

The only hope for the decriminalization of cannabis now lies with the BVerfG. No liberalization can be expected from the current federal government; the federal drug commissioner who recently rejected any push for legalization.