On September 18, 2019, the District Court of Bernau, Berlin, dealt with three offences concerning the personal use of cannabis and the possession of small amounts of marijuana. Now, two of these cases got forwarded to the Federal Constitutional Court in Karlsruhe, which means it has to examine whether the constitution even permits the criminal prosecution of cannabis possession and whether the ban on cannabis in Germany is constitutional at all.
Cannabis ban in Germany may be unconstitutional
The juvenile judge Andreas Müller, who is responsible for these three aforementioned cases, has been campaigning against the cannabis prohibition for many years. He already filed a case with the Federal Constitutional Court in 2002.
At the time, the constitutional judges had deemed the ban as constitutional. However, in the meantime, new scientific findings were made and the attitude towards cannabis has changed. Not only in Germany but also globally.
For example, about one year ago, on October 31, 2018, the Mexican Supreme Court ruled the marijuana prohibition law to be unconstitutional. Additionally, one month earlier, in September of 2018, the South African Constitutional Court legalised the use of cannabis for adults in private spaces as well as the growing of marijuana for private consumption.
There are also many U.S. states and some countries, like Uruguay or Canada, that have completely legalised cannabis. However, the last time that the Federal Constitutional Court made a ruling on cannabis was in 1994, a quarter of a century ago.
Now, this decision by judge Andreas Müller to forward the cases to the Federal Constitutional Court for examination is part of a campaign that the ‘Deutscher Hanfverband’ (German Hemp Association) or DHV, for short, is pushing right now.
The main goal of this judicial campaign is to get as many judges as possible to use the judge template that the DHV created to submit cases to the Federal Constitutional Court. This can be done by any judge who has to convict a defendant for a cannabis offence but considers it to be wrong and unconstitutional to do so. What’s more, people who are in court for a cannabis offence can also use the template to get their case up to the Federal Constitutional Court.
One of the DHV’s arguments is that the German government accepted that cannabis isn’t only a drug but also has therapeutic use-cases when it allowed doctors to prescribe marijuana flowers or cannabis-based drugs in March 2017.
Previous attempts by DHV to push for marijuana legalisation
The DHV is aiming for a consumer-friendly regulation of the cannabis market. It wants to end the discrimination and persecution of cannabis users, promote the raw material hemp and better the conditions for the use of cannabis as a medicine.
Before this campaign, the DHV already had two other big campaigns. First, in 2017, the DHV submitted a petition with more than 80,000 votes to the Petitions Committee of the Bundestag, making it the strongest petition of the year. However, there still hasn’t been any consultation or debate on this cannabis petition.
Another big initiative was the so-called ‘Haucap-study’. The German economist Justus Haucap did a study on behalf of the DHV that found that the German government could get as much as €2 billion in tax revenue each year if it legalised cannabis. This means that legalising cannabis would definitely benefit the German economy.
In an interview with ‘Deutschlandfunk Kultur’, Haucap said that ‘[…] if you add everything together, you easily get 2,5 billion [euros] that the taxpayer loses each and every year. This is basically made up of two blocks: one is real tax revenue, which is not collected because cannabis is illegal and, therefore, not taxed. And the other one is unnecessary costs that are the result of numerous investigations that are opened and closed, which causes administrative burdens on the police, prosecutors and courts without achieving anything. That’s another one billion euros.’
To attract as many lawyers and judges as possible to the judicial campaign and get them on board, the DHV has launched a large-scale media campaign. You can find further information about the campaign as well as the templates for judges, lawyers and defendants on its website.
If the Federal Constitutional Court would deem the ban on cannabis to be unconstitutional, this would set a major precedent for other European countries. It would also further boost the German medical marijuana market which is already, according to Handelsblatt, predicted to be bringing in more than €6 billion in annual sales by 2030.
At the moment, there is a lot of unmet demand. Which means that the country has to spend a lot of money on importing cannabis from other countries. Just last month, Germany imported its first-ever shipments of medical marijuana from Australia and Portugal.
While this is already pretty significant by itself, what’s even more significant is that the shipment from Portugal was, in fact, the biggest-ever shipment of medical cannabis in the EU. This tells us a lot about the size of the German medical cannabis market.
Even though medicinal marijuana is already legal in Germany, the domestic cannabis market could still profit immensely from a more liberal cannabis legislation. This, in turn, would benefit cannabis patients because they wouldn’t have to rely on imports.
On top of this, a lift of the cannabis ban would also bring in a lot of tax revenue and further boost the economy by enabling Germany to become the European cannabis hub. All the while it would be decreasing crime rates and black market drug profits.