Symbolic Criminal Law without Limits
Commentary on the Cannabis decision of the German Federal Constitutional Court
Prof. Dr. jur. Lorenz Böllinger
Professor of Criminal Law and Criminology
University of Bremen/Germany, Faculty of Law
One of the basic principles of the German democratic system is the rule of law: any exertion of state power has to be directly and specifically rooted in parliamentary law. Germany has, in theory, a highly sophisticated democratic system of constitutional constraints in making and applying the law. This principle is to be applied with highest scrutiny with respect to criminal law as this is generally considered to provide for the most severe kind of interference into basic individual rights. Therefore Criminal Statute Law in Germany is conceived not only to protect certain values and victims but also to preserve the constitutional rights of the citizen who is exposed to investigation or accusation. Therefore in criminal law science, theory, methodology and doctrine – in German: “Dogmatik” – the principle of interpreting and applying the law in conformity and concordance with the constitution is of superior importance. As the legislative act in itself is not considered to suffice as a guarantee of constitutionality of any law the German “Grundgesetz” (Basic Law = Constitution; abbreviated: GG) in Art. 100 GG provides for an extra reviewing procedure at the Federal Constitutional Court (“Bundesverfassungsgericht”, abbreviated: BVerfG).
It is to be seen in this context that on Dec. 12, 1991 the Landgericht (regional criminal court, appellate court for minor offences) of Lübeck/Germany under the presidency of Judge Wolfgang Nescovic decided, applying Art. 100 GG in a “Vorlagebeschluß”, to suspend proceedings and submit § 29 of the Betäubungsmittel-Gesetz (Narcotics Law; abbreviated: BtMG) to the BVerfG for review with respect to cannabis. The decision dealt with the case of a woman having smuggled 1.12 grams of Hashish to her fiance in prison. By applying written and precedent law properly she would have had to be sentenced to at least one year of prison since it was a relapse. The Landgericht viewed that as excessive and out of proportion. In its 70 page opinion it argued mainly on the lines of the following basic human rights as set forth in the Grundgesetz: Freedom of action (Art. 2 Par. 1 GG); the general freedom right, meaning the right not to be confined other than on the basis of law and legal procedure (Art. 2 Par. 2 Sent. 2 GG); the right to be treated equally before the law (Art. 3 GG). The Landgericht equally emphasized what it thought to be a breach of the very fundamental constitutional principle of commensurateness of any law, regulation and action of the state.
The BVerfG in the German judicial system also has the power to review individual constitutional appeals based on the claim of infringement of constitional rights by the state. Such complaints are only accepted for decision, however, when the case of the complainant has been dismissed by the regular court of last resort, which in Germany is the Bundesgerichtshof (Federal Court of Justice, abbr. BGH), usually the second appellate instance in severe cases. So the German BVerfG has at the same time more and less judicial power than the U.S. Supreme Court. The BVerfG consists of two independently operating and specifically competent “Senate” (panels of justices) of eight judges each, four of whom constitute the quorum to uphold a state action or judicial decision against the complainant.
It took the 2nd Senat of the BVerfG more than three years to come down with its decision on the Art. 100 GG submission of the Lübeck Landgericht. There are rumors that the court had already concluded a more liberal version of the decision which was altered after one judge of the panel retired and another one was newly appointed in late 1993. The Senat included five other and similar decisions by other German courts and a constitutional appeal (Verfassungsbeschwerde) by a citizen, whose drug offence sentence had been confirmed by the Bundesgerichtshof.
Two dichotomous categories of statute provisions were subject to reviewal: (a) Drug related actions oriented at private consumption (import, acquisition, possession: § 29 Par. 1 and 3 BtMG) versus delivery (dealing or giving away in any other way: § 29 Par. 1 BtMG). (b) The determination of the amount of drugs subject to criminalization: a “small amount” (“geringe Menge”) determined for private use (§ 29 Par. 5, § 31a BtMG) vs. a “non-small amount” (“nicht geringe Menge”) automatically supposed to be determined for dealing (§ 29 Par. 3 of the previous version of the BtMG which has since been revised, though the provision is equally relevant in the new provisions of §§ 29a, 30 and 31 BtMG). The submission for review of these provisions which all apply to illicit drugs in general was of course limited to their applicability to cannabis.
The BVerfG, with a majority of seven to one, declared all the challenged statute provisions to be entirely in conformity with the constitution. Only one of the two dissenting votes, by Judge Sommer, gave way to many of the contesting arguments and indeed suggested a substantial change of the law concerning Cannabis. In view of this clearcut decision an observer who has perceived the German and international media reactions might be puzzled because they – enthusiastically or critically, but mostly sensationally – amounted to the spectacular conclusion that the highest German court had actually legalized any personal use of cannabis. Many already saw a very basic change of German drug policy resulting – depending on the attitude – either in a drama of a mass epidemic or in an improvement in view of the pathetic fate of criminalized cannabis users. For a while it even seemed that this would become an issue in the imminent federal elections of Oct. 16, 1994. This unproportionate misconception of the decision had its roots not in the finding of the BVerfG decision, that the law was valid, but rather in the reqirement it was coupled with, namely that the law should not to be applied in cannabis cases under the following conditions: (a) personal use; (b) “small amount”; (c) infrequent uses; (d) no endangerment of third persons like youths or soldiers looking on and thus being potentially infected. Actually that means that law enforcement had to intervene in every case of even the tiniest amount, leaving open the possibility for the prosecution to tentatively drop the charges when it had confirmed the named preconditions in the individual case. Thus the BVerfG even fell back behind the 1992 amendment of the law (§ 31a BtMG) providing for such decriminalization in view of all illicit drugs, not just cannabis. Public misconception may also be due to what can be optimistically interpreted as a general acceptance of the court of the need for further research. This concerns the effects of cannabis as well of the cannabis control system in comparison with the Dutch system of drug market separation. It is also being insinuated that the legislature might have to reflect outcomes of such research.
The misconception is in itself an interesting fact worthwhile to be researched and interpreted. Media reception had more public impact than the official press releases by the court. Immediately there was a sense of relief among cannabis users resulting in much more open debate about and use of cannabis. Evidently the police forces were encouraged to bother even less with enforcing the law in view of cannabis. Accessible figures so far also indicate that prosecutors have indeed further decreased their activities even though the necessary federal guidelines about how and when individual charges against cannabis users can or must be dropped are still at large and will probably not function anyway. Also the courts are, as it seems, revising their criteria for the amounts of drugs considered highly dangerous. Maybe the dramatic and hysterical reaction in the media can be explained by simple media logic, but it may also indicate that time is ripe for a true change in drug policy. Another reason may be seen in the publicly unknown fact that statistical findings about decriminalization practices throughout Germany, so far based on a very unprecise regulatroy clause – § 31a BtMG -, showed extreme disporportions in prosecutors` actions: the rate of charge dismissal in small quantity cannabis cases in the last years varied between around 80% (Berlin) and 6% (Bavaria). The unequality aspect could definitely not be overlooked any more in this spectacular case of “law in action” deviating from “law in the books”.
Contrary to many optimistic reactions to and interpretations of the decision I am proposing that because of its reasoning and methodology it is detrimental not only to decriminalization efforts concerning illicit drugs but also to the basic principles of rule of law and of criminal law doctrine as mentioned in the beginning of this text. The decaying impact of this on a democratic and rule of law culture cannot be underestimated. The decision is doing away with vital normative limits in a dual sense: (a) Criminal statute law cannot retain the limiting function which by the Grundgesetz it ought to have; (b) The constitional limits of nationally making and justifying penal laws are toppled by acceptance of supranational obligations to penalize certain behaviors. In view of this depressing development only the dissenting vote of Judge Sommer offers hope for possible future change.
2. Critique of the Constitutional Court reasoning
The main emphasis is put on the examination and application of Art. 2 Par. 1 GG (general freedom of action) and Art. 2 Par. 2 Sent. 2 GG (general right not to be confined). There is only a short passage at the end of the ruling dealing with Art. 3 GG (equality before the law). The general measure applied is that of the principle of commensurateness (Verhältnismäßigkeitsprinzip). It must be mentioned already at this point that the BVerfG throughout the presentation of grounds totally ignores the voluminous constitutional rights debate which has been going on in law journals and other pertaining publications concerning illicit drugs. In other rulings it has, by contrast, not hesitated to enter into the scholarly and academic constitutional rights discourse.
A. Freedom rights and the principle of commensurateness
With respect to Art. 2 Par. 1 GG the court postulates that any involvement with illicit drugs, in particular any intoxication cannot be counted as part of the core area of indispensable personal freedom which by the German constitution cannot be infringed. This is justified by “multiple social consequences and interactions” of such behavior. This actually implies an empirical assumption which is not in any way elaborated. That way it is also ignored that much of the known results and interactions of drug use are owed to criminalization.
On the formal level there is some illogical circular reasoning as the court claims the infringement of freedom of action to be substantially justified by formal legislative procedure, as is the condition in Art. 2 Par. 1 GG. The German constitution provides the possibility of a law correctly passed by the legislature still being unconstitutional. This makes it logically impossible to use the very law under scrutiny to justify intervention into personal freedom rights foreseen by just that law.
In the material sense there is a lack of differential explanation why other behaviors, like eating and interindividual communication or sexual behavior, which also result in “social consequences and interactions” are indeed, according to the interpretation of the BVerfG, part of the core area of the freedom of action right so that they do not need to be regulated other than in cases of violation of the individual rights of third persons.
It should be registered as positive, however, that the BVerfG basically acknowledges self-intoxication as a form of human behavior which does pertain to the principle of freedom of action. As it is not found to be part of the core area of this right, however, it is subject to threefold limitations foreseen by this Art. (the so-called “Schranken-Trias”): the constitutional order, the law of customs (“Sittengesetz”) and the rights of third persons. This can be taken as a slight indication of accepting a citizen`s free will to consume drugs.
In this context it should also be positively mentioned that in a material sense the principle of commensurateness is held up as the decisive measure and criterion. The BVerfG says that this principle is of “increased importance for the scrutiny of a criminal statute provision, which as the sharpest state sanction pronounces a socio-ethical condemnation of a certain behavior of the citizen.” Only for very heavily weighing reasons may the state intervene into the basic right of the freedom of the person. This is only the case when the protection of the rights of third persons or of society as a whole demands this under the auspices of the principle of commensurateness. It seems important that at this point the BVerfG states the “necessity of thorough balancing of the intervention intensity and the weight and urgency of the justifying grounds” as well as the need to adhere to the “guilt-principle” (“Schuldprinzip”). The term “guilt principle” within German criminal law theory and doctrine signifies the basic legitimation of punishment which is derived from Art. 1 Par. 1 GG: the citizen may only be subdued to what is explicitly called the “evil of punishment” if a certain least amount of personal responsibility and guilt can be ascribed to him. This ascription is based on the assumption that he knew he was doing wrong and that he was able to freely decide about his action. The amount of guilt is to be graduated by the court and thus determines the amount and limit of punishment.
B. Delimitation of basic legal principles
So much so good. The implementation of these ideal but methodologically and, as far as their content is concerned, quite abstract and noncommitting principles leaves a lot to be desired. In the ongoing reasoning of the decision there are numerous indicators for superficiality, lack of reality check and contradictiveness. All this amounts to what must be called lack of juristic diligence in view of specific scientific and methodological standards. The findings of legal sociology are once again certified: legal decisions are not really deductively arrived at but rather produced and constructed in the sense of an arbitrary making (Setzung) or by force of communicative power depending largely on personal and political variables. In the BVerfG decision, too, empirical references only appear to be a plausible but subsequent and superficial demonstration and legimiation of what had really been decided intuitively or politically beforehand.
The BVerfG in a problematic manner mixes up two levels which should be kept apart: The first step in its reasoning consisted of delimiting any involvement with cannabis from the core area of freedom of action. In a second step after that it would have been necessary to clarify, in applying the measure of commensurateness, whether and how legal constraints of the general freedom of action are necessary at all. This step also encompasses the examination of which legal or administrative options are instrumental to arrive at the aim of protecting public health and social coherence. Only in a third step after that, also applying the principle of commensurateness, the constitutionality of the penal norms installed by the lagislature was to be scrutinized with respect to the general right to freedom.
Instead the court has developed a concept of splitting that scrutiny in two times two segments: On one hand the principle of commensurateness is properly operationalized in three sub-principles: (a) suitability in view of the legal aims; (b) necessity; (c) – prohibition of excess, commensurateness or proportionality in the narrow sense. These sub-principles were split up, however, so that the first two – according to the BVerfG – should only apply to the penal law component of defining the unwanted behavior and the threat to punish. The third one, by contrast, should only apply to actual enforcement of the of the punishment, namely by sentence and confinement.
Both the principle of commensurateness and the penal norm are not splittable in that way. Punishment can vary by degree according to a judicially determined amount of guilt. But the question whether criminal law as the ultimate means of social control is to be applied or not has to be reviewed in its entirety by the criteria of all three sub-principles of the principle of commensurateness.
Except for this mistake the interpretation of the BVerfG concerning the necessary freedom of judgment of the legislature seems acceptable. The legislature must for every proposed law determine suitability, necessity and proportionality in view of the aims to be reached. It must also engage in an evaluation and prognosis of dangers by which an individual or the society as a whole may be threatened. This leeway of legislative discretion cannot be scrutinized by the BVerfG. But the methods and diligence used by the legislature in carrying out its obligation must be reviewed by the BVerfG. The legislature must with rational grounds justify not only the criminal statute provision but also the kind and amount of penalty threatened therein. It must do so in using not only superficial rethoric but rather some precise scientific materials adhering to common standards of rationality and consistency. Comparable to criminal procedure, which is designed to clarify as much of the empirical truth of the case as possible, in the course of law-making the empirical background of the social problem to be attacked by criminal law has to be adequately researched. Otherwise the danger of unwarranted assumptions about reality, prejudice and manipulation directing legislation would be too great. A consequence of this basic philosophy of German criminal law is that, when in doubt about the general danger of a certain behavior, the state has no right to criminalize it – just as an individual may not be punished when his guilt is in doubt.
The BVerfG has violated this principle several times. It would have been necessary, for example, to debate the term “rightfulness” (“Sachgerechtheit”), which is the only justification used by the BVerfG for using criminal law against drugs.
Most problematic among the features of the decision is the determination of the “legally accepted good” (“Schutzgut” or “Rechtsgut”). This very significant term in German constitutional and criminal law designates certain defined social values, which are to be protected. In criminal law these defined legal values serve as guidelines. In a qualitative sense a defined “legal good” is the measure for justifying criminalization, namely serving the aim of protecting that legal value. In a quantitative sense it serves to argue the limitation of punishment: only if there is a substantial and significant damage of such a legal value is the state permitted to use the ultimate means of criminal definition and punishment. And by jurisdiction and criminal law science the basic theory of criminal law and doctrine has been thoroughly developed to the point that such “legal goods” should not be defined deliberately but have to be methodically deducted and substantially based in individual human rights. Otherwise the state would be able to arbitrarily define any particular interest as a legal value to be protected by criminal law. The state could, for example, declare its interest to function without any disturbance a “legal good” and therefore define many possible acts as such a punishable disturbance. Only in some cases such criminalization could be excluded for constitutional reasons, for example when the core areas of the constitutional rights of free speech or demonstration are touched upon. There are of course significant interests of the society as a whole which have to be protected by criminal law: e.g. “sane environment”, “peace between the nations”, “existance of the state” etc. Such defined “social legal goods (“soziale, kollektive Rechtsgüter”) have to be theoretically based in human rights, however. By this construction it must be argued that it is ultimately the individual citizen who is harmed by a violation of the “legal good”, e.g. by pollution, by causing war or the breakdown of the state. The logical connection between the social and the individual interest must not be too distant, diffuse or indirect. The state seems to have a natural tendency to widen the scope of such “social legal goods” in order to be able to criminalize anything it wants. And of course there just are no precise methods to exclude the misuse of that doctrinal term, to say nothing of sanctions.
But what the BVerfG did is definitely more than just an extensive interpretation of the term “social legal good”, it is a breach of a methodological and material criminal law and science consensus. It has for one based its argument on the traditional justification of the narcotics law, which has, since the criminal law principle of the protection of “legal goods” was institutionalized after World War II, been “public and individual health” (“Volksgesundheit”, “Gesundheit des Einzelnen”).
The substantial background of the assumption that cannabis harms “individual health” and thereby “public health as a whole” to a relevant extent has long and increasingly been doubted and scientifically proven wrong. Even the BVerfG reports those doubts. Therefore it seems to have seen a need to find some additional justification. This comes in by the creation and definition of a secondary “social legal good”. It does so by interpreting another basic aim of the BtMG: the protection of the organization of communal life in such a way as to keep it free from the socially harmful effects of involvement with drugs. This secondary justifying formula of the BtMG can be condensed in the term: “protection of social coherence”. Thus the somewhat dwindling justification by “protection of public health as a whole” has been reinforced with an all-out social interest. This strategy of supplementary legitimation had already been prepared by the Federal Court of Justice (BGH) which, in a 1991 decision, had argued with the necessity to protect youths and the family as a whole from drug-related difficulties of all sorts.
To further justify this the court thirdly refers to international agreements, especially the 1988 Convention of Vienna, which it interprets as an obligation for Germany to criminalize cannabis.
By this three-fold justification the court renounces the criminal legal science consensus about the necessity of substantial legitimation of criminal law. It takes to a shaky ground where everything could arbitrarily be labeled punishable. The objects of supposed harm and consequently of protection which the BVerfG enumerates are totally vague, diffuse and abstract and cannot in any reasonable way be linked to individual human rights. By this logic it could be justifiable to criminalize the use of sugar: Sugar is, to some extent, addictive. It also has an immanent tendency to cause excessive use which in turn harms individual health. On an aggregated level thereby public health as a whole is affected to a measurable degree.
Even more abstract and diffuse is the postulated necessity to protect the international community of nations. This introduces some externally defined aim into the justification of German criminal law. As that aim is methodologically and materially not compatible with German criminal law science and doctrine it would first have to be assimilated to our system of law. In the mentioned form it cannot be made compatible, however, as the “protection of the international community of nations” cannot in any way be linked to the defined “legal goods” of those who are, according to the logic of the BtMG, to be protected from the effects of drug involvement. According to German criminal law doctrine it is considered to be a violation of Art. 1 GG (“dignity of man”) when individual punishment does not primarily serve the purposes of resocializing and reeducating the individual perpetrator. If individual punishment is unnecessary and senseless it may not be used for teaching others, for preventing crime in general or for any other external aim. By introducing just such an external aim the essential German criminal law principle of causality, accountability and ascribability is being dissolved, thresholds against arbitrariness are lowered. An individual may only be punished if he fulfills the provisions of a criminal statute law in the sense this law was originally meant for. The BtMG provisions were not installed with the aim of protecting the
international relations of Germany or the interest of the international community. Looking at the international accords in view of German constitutional law, it must be said that they cannot overrule the German constitutional order.
Furthermore the whole reasoning of the BVerfG contains a basic default of legal logic: Harming or even suiciding oneself is, according to German constitutional and criminal law, not punishable. It is unreasonable and contradictory to maintain that drug consumption, even contrafactually assuming its self-harming effect on the user, should be punishable while suicide as the ultimate form of self-destruction is not punishable. So far the judiciary has solved that problem by supplementary reasoning: the postulate of endangerment of third persons is based on the assumption, that the act of drug consumtion in itself or the delivery of drugs as such bears the capacity of luring onlookers and recipients into doing the same.
All this has relevance far beyound just the drug laws: It actually modifies the basic concept of German criminal law. According to the original philosophy of criminal law it is to be reactive in the sense that it follows actual perpetrations. This also implies that the material truth of any individual case has to be meticulously clarified (§ 244 StPO = Criminal Procedure Code), that individual guilt has to be proven by the court and that plea bargaining is not legally possible. Now increasingly criminal law becomes instrumental in operational, preventive and preemptive concepts of law (“Verbrechens-Vorsorge”). This amounts to a change from penal law to a general police-law. Increasingly criminal law is also conceived as a means of steering political matters and dealing with social problems on the symptom level instead of providing substantial social policy solutions on the level of causes.
It seems somewhat alarming to observe that the Supreme Court has made no effort whatsoever to enter into the intense current scientific debate about these legal and conceptual problems. It ignores virtually all the questions that have been raised.
C. Pseudo-empirical grounding of the interpretation of law
Having stated that criminal law is suitable and necessary to combat the assumed dangers of cannabis consumption the BVerfG then seems to ventures into the empirical background of the danger hypothesis. It arrives at the conclusion that “the current state of knowledge still indicates that not inconsiderable dangers and risks remain”. This conclusion is justified with the contention that the Senat really went through all sorts of scientific materials. A closer look reveals that the amount of research accomplished by the court is very meager. The material consists, for one part, of an expert report by the criminology department of the Bundeskriminalamt (BKA: German equivalent to the FBI) which contains methodological flaws and a lack of scholarly reception of most of the pertaining studies. Another reference is a brief by the Bundesgesundheitsamt (BGA: Federal Health Office) which proves to be a selective, superfical and biased account of other literature. “Other literature” which the Senat maintains to have studied is not disclosed. This kind of unscholarly technique would not be acceptable in a student paper, incidentally. The main three sources cited by the court, however, are indeed representing the work of reknown scientists in the field: One, which could be called the progressive position, is by S. Quensel of the University of Bremen. The second is by K. Täschner, a clinician and professor of forensic psychiatry in Stuttgart who for decades has been very outspoken about cannabis being harmful and flashback prone. The third one is by Geschwinde, a lawyer who has diligently studied a lot of material but has come to a rather conservative conclusion. Thus it appears as though the court has “heard” one important representative of each relevant “camp” and then weighed all the information in a veritable scholarly procedure. Looking at the text more closely it can be found, though, that this working-through has not taken place at all. It is rather a very superficial reception of some citations and conclusions which seems to have had no influence on what was probably a preconceived opinion within the Senat. This reflects the typical pragmatism of the judiciary: what counts is superficial plausibility, not scholarly reasoning and debate. It is purely for external exposure and legitimation that the court presents different opinions and then seemingly weighs these in order to come to a conclusion.
It must be emphasized, however, that the Senat itself formulated the principle which it actually didn`t heed: justice as well as the legislature should indeed look into the empirical findings and theoretical results of relevant sciences before they come to judgements or laws. The adequte method to do this would be some kind of an expert hearing. The same idea is also put forward in another part of the decision, where the Senat maintains that “the legislature is obliged to observe and review the effects of current legislation, also taking into account the experience of other countries.” Even though in real judicial and law-making practice this principle of reality check may remain largely theoretical, most of the time it does, however, offer another chance for future criticism and improvement.
It should also be noted that, even though scientific insight as reported before is not really implemented in the decision, some of those insights are basically accepted by the Senat. It is new to the German legal system to concede, for example, that cannabis does not generally and necessarily cause harm, that 800.000 to 4 million German citizens are estimated to be users, 56,7% of whom use it infrequently. It is generally accepted now that the effect of cannabis, like of any other drug, not only depends on the substance itself but as much on set and setting. Also tolerance formation, physical dependence as well als the stepping-stone theory and the assumption of causality for the so-called “amotivational syndrome” are being cautiously questioned.
But still, the way the court processes and digests all these insights and informations results in what could be called a carricature of reality. Various terms, like that of “public health” are in no way operationalized or at least differentiated as to their legal or empirical usage. The term “Volksgesundheit” which had been used in the original justification of the law is ostensibly being avoided by the court as it has some Fascist connotation. But it maintains that there remain certain risks which can spread epidemically. The dangers are now being related not to any cannabis use as such but to continuous and heavy use. It is insinuated that infrequent use can always lead to such intensive use. This ignores findings that such problematic use is not inferred by the drug itself but rather by dissocial surrounding, peer group pressure, underlying personality traits and the like. The theory of the drug-induced “amotivational syndrome” is trickily reinferred by the Senat when it states, citing one author: “Permanent use of Cannabis products can lead to behavior disorders, lethargy, apathy, anxiety, derealization and depression”, which in turn could “severely disrupt personality development specifically of young people”.
Even though shortly before the untenability of the stepping-stone theory was pointed out, it is reintroduced by the assumption of a “homogeneity of the drug market” by which cannabis consumers would be lured into consuming hard drugs. There again the fact is ignored that this “homogeneity” is indeed created by criminal law enforcement itself and could very well be minimized, e.g. by the Dutch way of separating the markets. Also the assumption of cannabis being causal for automobile accidents, as cited from the BKA-report, is not valid: The survey on which this was based invariably included cases where a significant amount of alcohol had been detected first. Only upon the examining the blood samples more profoundly different quantities of THC were found too. Ultimately the blame for the accidents cannot be put on cannabis alone but rather on a cumulation and interaction of alcohol and cannabis.
Aside from these contradictions it has to be criticized that the Senat hasn`t taken the trouble of looking at today`s state of the art of cannabis research. Neither methodolocical criticism nor counterproof to the harm hypothesis have been acknowledged: Under the condition of informed, recreational and socially integrated use cannabis cannot cause harm. Abuse in the sense of highly dosed and permanent consumption along with social disintegration is extremely rare and even then tar harm by smoking the weed is far from comparable to the tar and nicotine dangers of tobacco smoking. If negative mental outcomes of heavy cannabis use are reported, for example the above mentioned “amotivational syndrome”, they are explicable as a parallel and interactive result of conditions and developments leading to heavy use in the first place. The construction of primary causality between cannabis use and mental disorder is faulty.
Without any scientific survey or methodological reflexion the empirical assumption of the contagiousness of consumption is considered sufficient to ground the legislative decision. The infection-theory is derived from medicinal causality models in the explication of virus and bacteria diseases. This theoretical model is untenable from a psychological viewpoint. Processes and developments of human motivation are far more complicated than is being suggested by this crude model of linear causality according to which the simple fact of watching cannabis consumption or of receiving a portion of an illicit substance could significantly influence human behavior.
Furthermore it is incomprehensible how the Senat could have totally ignored the whole of criminological insight into the circular and harmful effects of criminalization and law enforcement. It should also be indicated at this point that the medicinal usefulness of cannabis which is being increasingly acknowledged pharmacologically is also left out by the Senat.
D. Normative contradictions and circular logic
Even accepting the assumption of drug related harm – which has just been refuted – there remains, in the following part of the decision (C I 3), a blatant default of normative logic in ascribing accountability (responsibility, guilt) to the one who poses as an example of drug consumption or who delivers the substance.
Basis of our constitutional order, including criminal law and general ethics, is the anthropological image of the human owning free will, self-determination and self-responsibility. It is generally assumed that an average individual is capable of directing him- or herself. This Western “Menschenbild” is being discounted by crude and unwarranted empirical assumptions about self-determination not functioning in view or under the influence of cannabis. This implies that under physical or even merely visual influence of drugs, no matter what quantity or intensity, the individual must legally be considered uncapable of self-determination. This consideration differs much from the formal procedure of declaring a defendant “insane” (“schuldunfähig”) in the sense of the German criminal code (§ 20 StGB). By strict law it would be necessary to empirically determine and legally judge that the defendant is incapable either of insight into the matter or of adjusting his behavior according to that insight. Thus, ignoring empirical insight, a psychological assumption about external motivation is normatively construed. An observer of drug consumption is imagined to be so overwhelmed by what he sees that he will be likely to copy that behavior. This way of thinking is modelled after the mechanics of an infection caused by intentional or negligent transmission of viruses or bacteria. Giving an example is notably not a direct causation of harm for the health of the other as it would be the case with intentional infection of another person with, for example, influentia or HIV. The former would not be punishable as it would be valued as “socially adequate” to be infected with a flu, the latter would be punishable according to German criminal law only if the recipient of an i.v. injection or the partner of sexual intercourse is not informed about the HIV risk. The difference with drugs is that for the drug risk to materialize there must be a concrete determination of will and a willful action of the so-called victim. Implicitly, unrealistically and contrary to many other cases of “bad examples” the “victim” in this specific normative context is being construed as not capable of self-determination.
E. The ignorance of the damaging effects of drug policy
The next step – following the formal reviewing procedure by the criteria of the principle of commensurateness – is devoted to the first sub-principle “Geeignetheit”: the question of whether the contested statute law provision is expedient (apt, suitable) in view of its purpose to constrain the distribution of the drug in society and thus reduce the harm that it causes”. The Senat affirms this without any further debate or argument. It seems strange that the vast array of criminological research and the scholarly criminal policy discourse concerning the unintended, counter-productive and even destructive side-effects and consequences of criminalization of cannabis and other drugs are being ignored. This can hardly be interpreted otherwise than as the self-complacent apodictism of a judicial panel knowing itself beyond any further review. This is a kind of self-misconception of the BVerfG assuming the function of a supreme political steering institution in terms of furthering public morality and suppressing certain life-styles. In that respect one can find some similarity to the recent BVerfG verdict constraining the right to abortion.
Equally without reasonable substance is the following affirmation of the legislative assumption of criminalizing cannabis involvement being “necessary to achieve the aims of the legislation”. This question of necessity (“Erforderlichkeit”) constitutes the second sub-principle of the basic constitutional principle of commensuratenss. Albeit it can be greeted that the court does not usurp legislative power which it would have done saying when and how any social problem would have to be attacked by criminal statute law. Indeed that decision has to remain within the realm of judgement and discretion of the legislature. It is also properly pointed out 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 wich it is constitutionally required to legislate on or to reject as a possible solution those regulations which have already been introduced.” That implies the necessity to review whether the legislature has heeded the formal procedure of law making. According to German law making procedure and the according scholarly theory in the process of law making, there has to be a discourse about and diligent studying of the criminological and social science background of the problem to be solved. There have also to be studies and surveys undertaken by parliament itself – usually in the form of research funding and expert hearings – concerning the feasibility of social control and the various available techniques and strategies of constructing and implementing such controls. This kind of probing the matter includes the question of possible outcomes and side-effects of the legal measure and its implementation in the future. The legislators have to consider different possible legal or administrative levels of regulation and have to choose the means least constraining individual human rights. An example as to how to deal with social problems is the way the danger of HIV-infection has been dealt with in Germany. Criminalization of all sorts of sexual behavior was taken into consideration but discharged as non-expedient and unnecessary. A strategy of enforced information and education about safe sex was considered and proven to be more efficient and less intruding in terms of human rights. This means that the legislators have a general obligation to heed current professional standards of their trade and to use all possible diligence in their action. The BVerfG has not taken the trouble of even mentioning these standards, let alone review their application. The court only cites the assumption of the 1988 Vienna Accord on Psychotropic Substances about criminal law being just the right means and its not having been refuted so far. Thus the BVerfG itself violated the principles of professional diligence in reviewing laws.
The third step of applying the principle of commensurateness in German constitutional law consists of measuring the commensurateness or proportionality of the legal regulation in a narrow sense with respect to the significance of the social problem and to the degree of guilt of the offender. The Senat here – as has been pointed out before – splits up the scrutiny. Contrary to what most constitutional law scholars in Germany including the dissenting vote of Judge Sommer say, the majority of the Senat claims: Passing a statute law as such only preconditions the sub-principles of “expedience” and “necessity”. This is justified by looking at it as only serving to reinforce public acknowledgment of that norm by deterrence, by threatening punishment. Only if the statute law is applied and implemented by actual punishment should, according to the Senat, the sub-principle of proportionality be applied. It then has to be checked whether the fact of punishment at all as well as the possible amount of punishment is out of proportion to the perpetration.
Now the above mentionend contrary opinion among German scholars in that field holds that even the threat to punish, as pronounced by the statute law, already intrudes not only into the general right of action as fortified in Art. 2 Par. 2 phrase 2 GG but also into the right to freedom of Art. 2 Par. 2 Sent. 2 GG.
Justifying total prohibition of cannabis by saying that it is necessary in order to protect “public health”, “important social matters” or “social coherence” is inadequate methodologically and substantially. The court indeed states that the dangers of cannabis today can be estimated to be lower than they were thought to be at the time the law was passed. So the court at least would have had to take the trouble of explaining why it still deems the threat of punishment proportionate in view of the concededly lesser danger. It has not, as is the professional standard of applying constitutional law, thoroughly weighed one aspect against the other and it has not, as is necessary in applying leglislative rules, discussed and evaluated empirical and criminological findings.
As the court rightly states that the legislators have to observe and evaluate the results of their actions, it should at least have criticized the negligence of the legislature under that aspect. Besides, it is impressive to observe how grossly the court applies circular logic in saying that the population has to be protected from “the criminal organizations which govern the drug market and from their harmful effects”: It is in reality and furthermost criminalizaztion which causes organized crime to exist and to be so harmful in the field of illicit drugs.
Ever again the court repeats the tradtional justification of drug prohibition by criminal law as the severest means of social control: “Protection of important social matters” or of “social legal goods”. Like the legislators of 1970 when the first major revision of the German Opium Law was done, the court now does not take the trouble of developing rational and intersubjectively plausible measures and criteria for what must be considered “important”. Thus there is no scholarly, theoretical or empirical comparison and evaluation of such “social matters”. Not even the terms used are explicated in any way. So the court doesn`t find anything wrong with the fact that the legislators have not attempted to get even a glimpse of social reality by any method, e.g. surveys or expert hearings. So there is – at this point in the decision grounds – not even a mention of or comparison with the dangers of alcohol or nicotine.
F. Crimes without victims – crimes without guilt
In this context a special feature of German criminal law has to be discussed: the so-called “abstract endangerment provisions” (“abstrakte Gefährdungsdelikte”). This instrument of criminal policy has been used increasingly in order to fight all sorts of defined social dangers. The reason of punishment is the causation of danger without actual victimization of anybody. Striking and convincing examples can be found in the realm of use of highly dangerous materials or taking dangerous action, e.g. setting fire to a building, the purchase and use of arms, chemicals or nuclear materials. The traditional concept of the German Criminal Code, meant to only prosecute and punish perpetrators when there was a “completed action” and a negative, victimizing outcome of such action. Contrary to that idea the instrument of the “abstract endangerment provisions” results in lowering the threshhold to the severe measure of punishment and in extending punishment into the phase of planning and preparation of perpetrations. This concept also results in enlarging the realm of possible punishment almost infinitely as it is very much up to informally derived court opinion about how the term “danger” should be interpreted. Practically all the statute laws within the BtMG are constructed this way. Thus the drug laws become forerunners of a general transition in German criminal law to a much wider use of criminal law as a means of steering and structuring society. As criminal law in itself is a very negative and potentially destructive means, it thus becomes evident that criminal law is increasingly beeing used as a substitute for real, substantive social policy. It is being used more and more symbolically in the sense that wished-for behavior is negatively termed in a criminal statute law and implemented without any cost except for the increase in law enforcement costs.
By this method one basic idea of Criminal Law Philosophy which was very much held up until now is turned around: the principle of individual guilt. As certain behaviors, like passing on a quantity of drugs no matter whether small or large, are generally defined to be potentially harmful to important social matters there is no room left for the determination of guilt in the individual case, situation and person. Only in a very restricted sense can behavior directed at private consumption be exempt from the generalizing definition of being highly dangerous: Purchase and possession of merely very small quantities of cannabis may only be considered non-dangerous for the general public – and therefore exceptionably non-punishable – if they are ingested personally, privately, unobtrusively and on the background of occasional use. As soon as there is a danger of some representative of an endangered public, like a youth or a soldier, looking on then there has to be punishment even though the consumption is only private and concerns only a very small quantity.
So in contrast to tradtional criminal law thinking where the perpetration and subsequent harm to the victim had to be causally linked in a logical and concrete way, now a very loose and abstract connection is enough. One further level of abstraction is installed as, in a very generalizing way, it is assumed that the simple fact of ostensiveness or subjective obtrusiveness to some representative of the endangered public would be capable of seducing or luring him into copying the act of drug ingestion. Yet another level of abstraction is introduced by the inferral that any private user might change his mind in the course of action, amounting to the decision to pass on his small quantity to somebody else who would then be in danger of harming himself or others likewise. Thus legal assumptions about the thinking of the perpetrator surpass his actual conscience, they dig deep into his potential will, into his sub-conscience: this is more than punishment of conscience – which is forbidden according to German doctrine. It may justly be called “punishment of the sub-conscious” or “psycho-penal law”.
In traditional criminal law doctrine (“Dogmatik”) such kinds of actions with a preparatory or assisting character could only be punishable in cases where the “legel good” would be of very high esteem, like when life or health or private property would be at stake. In such cases planning and simple preparation of a crime could not be punished at all (“Vorbereitungshandlung”). If the preparation was complete and only “success” of the action was pending punishment for an “attempt to commit a crime” (“Versuch” was at hand. Punishment for “assistance to somebody else`s committing a crime” (“Beihilfe”) would have to be specifically ruled in the statute law and would normally be sanctioned on a lesser scale. Not so in the narcotics law (BtMG): here those very abstract norms all are characterized as full-blown provisions for completed harmful actions. There is no acknowledgement, let alone respect for the free will of those who are normatively considered victims: the plain on-lookers of private consumption. To own and use a weapon or a car and by negligence kill somebody constitues cases of direct and evident causality. To deliver a quantity of illicit drugs in itself doesn`t have any causal outcome except for the potential danger of it being used by the recipient. The direct cause then would be the act of ingestion. Still killing by negligence in Germany receives much smaller punishment than delivering a “non-small amount” of illicit drugs. If indirect causes were to be evenly valued, then the manufacture and sale of weapons and cars which can be causal for killing by negligence or intention would also have to be punished.
G. The definition of harm by cumulation of non-harm
But not only is the defined danger extremely abstract and caused indirectly. The Senat also realizes that the assumed harm of the individual act of cannabis consumption for the defined “legal goods”, namely for “public health” and “social coherence”, is very little and – if at all – materializes only by cumulation of innumerable acts. So only the aggregated effects of widespread use, defined as epidemic, are seen to amount to a significant harm for the named “legal goods”. Even though the individual act bears no such significance at all the user is counted to participate in the dangerous drug market by creating the demand. The court here refers to the data mentioned before: the demand caused by an estimated 800.000 to 4 million cannabis users is seen as considerable. The individual cannabis user is therefore held responsible for the dangers of the illicit drug market. By this construction the person and body of the perpetrator is once more being used as an instrument for what in German doctrine is called “general prevention”, meaning both deterrence and a strengthening of individual normative conscience. According to the doctrine, however, punishment with the aim of “general prevention” may only be exerted when there is also individual guilt. Individual guilt in turn is difficult to construe when there is no significant danger for any legal good in the individual act. A similarly abstract construction of harm to a “legal good” can only be found in environmental protection laws, especially in the criminal provisions dealing with water pollution. There is a significant difference, though. The individual pollution act already has a direct and immediate effect of chemically changing the water quality. Drug consumption has an immediate effect on the user, not giving an example or delivering the substance. But that is not the legal reason for punishment. The law aims at quenching the intermediate effect of that act potentially being mimicked by another individual who would also not be punishable. So there is another contradiction to doctrine in the decision.
Another problem of such “cumulative delicts” in the criminal code is that law enforcement for practical reasons tends to concentrate on petty offenses and thus creates a deficit on enforcement on the really important ones.
H. The procedural law solution of depenalization
To be consistent with German criminal law doctrine it would have been necessary to to not use the instrument of the “abstract endangerment provision” but rather resort to the possibility of legally describing the individual act which is thought to be dangerous to the defined “legal goods”. Then different levels of danger could be graduated according to which punishment would have to be adjusted, provided that there has been a proven concretization of the defined danger plus the proven presence of individual guilt. It would then be possible, as long as the legislature still chooses to ban cannabis, to at least define in statute law a cut-off point of substance quantity below which the citizen could be sure of not being punished. This would fulfill the constitutional requirement of Art. 103 Par.2 GG, demanding that the citizen can relatively precisely forsee penal consequences of his action.
The solution chosen by the BVerfG remains within the limits of procedural law and hasn`t really changed anything at all: the criminal courts have, according to § 29 Par. 5 BtMG, since 1971 been entitled to drop the case when “small amounts” of illicit drugs were involved. This option was under the condition of the intention of the perpetrator to use them personally and privately. The case could not be dropped if there was any “public interest” in prosecuting or sentencing. The definition of such “public interest” is up to the prosecutor (attorney of state) or to the criminal court. It is to be supposed when the act of drug consumption is obtrusive or can be watched by juveniles, soldiers and the like who are thought to susceptible. Under the same conditions the prosecution could also tentatively stop law enforcement according to § 153 StPO (Criminal Procedure Code) under the condition of a consent by the court which would have been in charge. This option was clarified and widened in 1992 by § 31a BtMG which gave the prosecutor the right to decide about tentatively dropping the case without the court`s consent. This clause is applicable to the use of a “small amount” of any illicit substance. It has indeed in practice been widely used to factually – not legally – decriminalize cannabis use.
The decision of the BVerfG falls back behind current application practices by interpreting § 31a BtMG in a way which excludes frequent and permanent users from that option. This is contrary to the interpretation of criminal law science, the major criminal law commentaries and to what prosecutors have widely practiced. Prosecutors have widely and repeatedly decriminalized permanent users even of “hard drugs” as long as the named conditions were met. The more restrictive BVerfG interpretation of § 29 Par. 5 and § 31a BtMG now still doesn`t bind the prosecutors and should therefore not be dramatized. But it does show a basic restrictiveness in the Senat`s approach which could ultimately influence future interpretation of the laws.
I. Continued inequality of law in action
On the other hand one aspect should be greeted: The 2nd Senat of the BVerfG emphasizes what should be evident for jurists but is actually not heeded in practice: The need to interpret the legal term of “small amount” according to changes in use patterns and scientific insight. At least this part of the decision is of some help to remind lower courts of the need to revise the legal quantity cut-off points of the various illicit drugs. Indeed it seems that the decision has already had an effect on the criminal courts` practice in that the definitions of cut-off points are ging up.
The real problem, however, remains in the extreme interpersonal, inter-regional and inter-state differences in handling the procedural provisions. Surveys have shown, for example, that in Bavaria only 5.9% of all the cases involving small amounts of cannabis have been dropped while in Berlin in the same year it was 79%. The figures of the rest of the country were spread between these poles. This shows that “law in action” can deviate extremely from “law in the books” and that especially formal, procedural law lacks the relative precision of interpreting and applying which is possible in material law. The BVerfG sees this problem. But instead of choosing the proper solution of regulating this in material law and substantive provisions it rules that the states must agree on more precise regulations as to how to apply the procedural law already in effect. In order to facilitate such regulations it demands vaguely that more surveys should be done.
In German criminal law science there is an extensive debate about whether such problems should be, by measure of doctrine, dealt with in procedural or material, substantive law. The BVerfG doesn`t even mention that debate even though by professional jurisdictional standards it should deal with it and develop appropriate arguments. The main criticism against the procedural solution is just its anaccountability and unpracticability: the citizen is not able to foresee state reaction to his behavior. To make state reaction foreseeable is the noblest task of the penal code. As was mentioned before this right is constitutionally defined as an unchangeable basic human right (Art. 103 Par. 2 GG). Not only is the doctrinal justification of the procedural solution inadequate. It has already been shown that the attempt to homogenize prosecutors’ practice is bound to fail.
K. Flexibility of the definition of “large quantities” for distribution
The BVerfG on the other hand also had to review the provisions dealing with punishment for involvement with a “non small amount”. In a very short passage it sustains these provisions, based on the assumption that the possession of and involvement with “large amounts” necessarily indicates a determination to deliver, distribute or sell it to others. This in turn is valued as a severe danger to the defined “legal goods” and as a regular indication of a high degree of guilt which in turn justifies high punishment. The determination of the cut-off point of the “non small amount”, which is to be based on an exact measurement of the psychoactive agent within the seized quantity – e.g. 7.5 g of THC is the cut-off point for cannabis, which might be 10% of the actual black market substance – is explicitly left to the courts which are supposed to be independent of precedents and even of the interpretation of the Supreme Court. This differs from precedent law in the U.S. Thus there is, theoretically, leeway for possible change of interpretation on the basis of the constitution. It is with just that argument that the Frankfurt Landgericht decision to submit a similar case for review was not even admitted by the BVerfG. There are indications, however, that these limits and cut-off points for various illicit drugs are already going up as the justice system is becoming more lenient toward cannabis and even other drugs. But in practice most courts still tend to just follow the interpretations of the Supreme Court even though they do not have to.
Also there is a contradictory notion here as the court on one side argues that the “Principle of Certainty” (“Bestimmtheitsprinzip”) (Art. 103 Par. 2 GG) is guarded by jurisdiction of the Supreme Court (BGH) while on the other side it argues that the lower courts are not necessarily bound by Supreme Court decisions. And in practice most lower court decisions get overruled on the appeal level with reference to Supreme Court precedents.
L. Consumer responsibility with alcohol – not with illegal drugs!
In Part II of the grounds the Senat very briefly discounts the equality argument of the Nürnberg Landgericht which is indeed not the keenest. Presiding Judge Nescovic had maintained in his brief that penalizing cannabis consumption would result in the consumer being compelled to switch to alcohol. This is not a tenable argument in view of the general assumption of free will determination of any human behavior. It should be noted, however, that the Senat here maintains: “Rather, the decision whether to damage his health by abusing such freely avaliable intoxicants is the responsibility of the consumer himself.” Thus contradicting itself the Court at this point vows the personal freedom of harming oneself which in the context of illicit drugs it had vigorously denied. The court also makes no mention of the dissocializing effects of criminalization.
M. Alcohol not conceived of as a psychoactive substance
The 2nd Senat of the BVerfG also dismisses the argument of a violation of Art. 3 Par. 1 GG because of unequal treatment by law of cannabis and alcohol users. There can hardly be an objection to the statement that the state has a leeway of judgement as to which dangers for public health and society it wants to regulate and what means it will employ. It is at first glance plausible to say that as long as there are objective differences in social practices and drug effects “the principle of equality before the law does not require that all drugs which are potentially equally harmful should be prohibited or permitted equally.” But the reasoning is deficient: Unequal treatment of alcohol and cannabis users is justified by a totally unqualified differentiation of those drugs. Cannabis is, in a very superficial way, only defined as a narcotic which subsequently can only have intoxicating and narcoticizing effects. Alcohol on the other side is defined as a substance for casual and recreational use (“Genußmittel”), a consumer good basically intended for nourishment, enjoyment and other socially accepted functions. Thus any use of cannabis is per definitionem abuse while the use of alcohol is basically o.k. and not primarily assumed to be used for intoxication or any alteration of the mental state. Alcohol intoxication and abuse of alcohol are by this consideration only result of misbehavior and one kind of unintended side-effects. The court goes as far as to name christian religious use of alcohol as proof for this conception. In this view nicotine is not considered an intoxicant at all.
The court could not be any further away from scientifically explored reality: alcohol as well as nicotine are psychoactive drugs, though not very intensive at small doses. But they are definitely being consumed for just that psycho-action whether it is defined as intoxication or not. The members of the Senat seem to have taken the stance of a German middle-class bourgeois who complacently maintains: “I drink some good wine only because it tastes so good, not in order to get a psychoactive result.” Thus the danger of physical addiction is denied. Nicotine effects are being similarly denied.
On the other hand the Senat denies historic experience and current findings on cannabis effects depending entirely on the dosage, the situation and the expectancy of the user. Small doses may only have minimal, hardly noticeable psychoactive effects. Other possible uses of cannabis, for example as a substance in regligious rituals or as a pharmacon – are simply being ignored. The empirical and qualitative difference in risks is flatly denied: contrary to alcohol and nicotine there is no danger of morbidity or mortality connectable with cannabis. And even car driving is not affected to the amount which is commonly assumed by the courts in Germany.
The logical mistake of the BVerfG is to take illicitness as a natural feature of cannabis. If cannabis were not illegal there would be multifold social uses of the substance while if alcohol were totally prohibited only social use of it as an intoxicant would exist.
The BVerfG also returns to the further and very worn-out argument of “cultural alienity” of cannabis in contrast to alcohol. This can also be easily discounted as cannabis has been present even in the German culture for centuries, probably as long as in the mediterranean culture where it dates back thousands of years. But even the fact that now contendedly 800.000 to 4 million citizens are consuming it on a more or less regular basis implies that it is now culturally integrated. This holds true all the more as the official self-conception of the German society is one of pluralism and a multi-cultural society where mass consumption and the “pursuit of happiness” are dominant values.
The Senat closes with stating that there is no element of unequality involved in not differentiating between so-called “hard” and “soft” drugs. As long as cannabis keeps being scheduled as an illicit drug it really does not matter how it is being defined. The BVerfG justly states that it should be left to the criminal courts to devise their verdicts on the basis of knowing that cannabis is of much lesser effect and addictiveness, thus by official evaluation to be considered much less dangerous than so-called “hard drugs”. This of course is not very realistic as, given a rational and prudent use, even hard drugs must not necessarily be dangerous except for the fact of physical addiction with heroin. But that is another question.
3. The dissenting votes
One of two dissenting votes is by a lady, Judge Grasshof, who has only recently been appointed to the court. She agrees with the majority of the Senat on the final decision but argues slightly differently. On one hand her arguments deal with very special German doctrine questions which can be left out here. On the other hand she takes a much harsher stand on the supposition of cannabis being generally harmful. She emphasizes the “legal good” of “social coherence” even more than the panel majority and is not at all concerned with the theoretical question of criminal law having to be grounded by substantial individual rights.
The other dissenting vote by Judge Sommer almost radically differs from the majority. He uses many of the arguments used in my above response to the decision and presented in the criminal law science debate of the past years, all of which were ignored by the majority. Most important is his argument that in reviewing a criminal code provision the “principle of commensurateness” has to be applied in its totality of three sub-principles in view of the deterrence effect of the provision as such as well as of its consequences in terms of confinement or other virtual punishment. In differently weighing the meager results of the Senat`s efforts to obtain scientific and empirical information on the subject he arrives at the conclusion that criminal law reaction to cannabis consumption and consumption related behavior is incommensurate and thereby violates the constitutional rights of the cannabis users. He maintains that public law regulation of cannabis production and distribution with certain provisions for the protection of minors and the like are ethically and technically sufficient and in concordance with the consitution. Thus they would very much resemble the regulation of tobacco and alcohol in the pertaining German law (LBG = Law regulating food and other merchandise for everyday use).
Judge Sommer sees a violation of Art. 1 GG as individual consumers are being held responsible for assumed criminal behavior of others – namely the black market racketeers. He also denies an international law obligation to prohibit cannabis consumption by criminal law. Finally he maintains that, if cannabis is to be prohibited by criminal law at all, then the modalities and limits of private consumption should be orderly fixed by material, substantive law, not by vague procedural clauses.
Two markstones signify the cannabis decision of the BVerfG – one could also call them mill-stones around the neck of a liberal conception of criminal law based on the rule of law and on the principle of only substantial violation of individual rights by the perpetrator allowing state infringements of his human rights. One of the markstones is an almost limitless extension of “legal goods” to be protected by the German Narcotics Law. This bears significance far beyond the realm of illicit drugs. The general term of “legal good” as developed and used in theory and doctrine of criminal law is diffused. In its now attained vagueness and abstractness from social interests which are grounded in individual rights, in the possibility of the state arbitrarily defining any interest as a “legal good”, there are no more limits to proposing and justifying criminal law provisions as “solutions” for any defined public, state or social problem. Also the limits of a national legal order are torn down by allowing supra-national institutions to define what is to be punishable.
The other markstone can be seen in the way, criminal law is voided of causal action and substantial harm being the basis of the harshest kind of state interference in individual rights. Thus criminal law is increasingly devoid of such symbolic significance, the ultimate means of punishment and confinement becomes everyday practice. Politics makes increasing use of this means in order to “solve” problems. Though of course this solution is only symbolical as it doesn`t touch the real causes and background of any social problem. As such it is merely one version of symbolic politics without any real effort and free of costs other than law enforcement costs. Criminal law thus becomes an inflationary instrument of pseudo-politics. Punishment and the cruelty involved in it become all too commonplace.
Another significance of the decision can be seen in the negligent methodology of dealing with judicial and legislative behavior. There is not even the pretension of “finding the truth” – which is ideally the task of the legislature as well of the judiciary. The BVerfG is satisfied with a very superficial and colloquial kind of “truth” which is just barely satisfying public needs for plausibility but not really solving social problems in a substantial way.