Germany Considers the Question of Cannabis Prohibition as a Human Right

The Push to Realign Drug Policies with Human Right Provisions in the German Constitution

Over the last 30 years, Germany has passed various ambiguous drug laws with strong punishments but also with very vague definitions of ‘drug offenders’. Currently, Germany’s Narcotics Act classifies cannabis as an Appendix III drug, which refers to drugs that are neither too dangerous to prescribe nor too dangerous to be sold. However, possession, growing and selling are still outlawed due to concerns about the drug’s negative effects on the brain. The punitive measures for deterring drug possession and sale takes into account the individuality and circumstances of the drug offender, ranging from a mere dispossession by law enforcement agents without further prosecution to fines of up to €25,000 ($30,000) or two years for drug offenders above the legal age.

However, legalisation activist and the CEO of the German Hemp Association (Deutscher Hanfverband) George Wurth says that existing drug laws in Germany are ambiguous because they violate the basic human right laws enshrined in the German constitution, which gives citizens the right to grow and use plants that aren’t detrimental to human health. “We don't only consider the prohibition of cannabis stupid, but also incongruent with the German constitution," Wurth disclosed in an interview with Civilized.

Growing rates of consumption as well as other pressing security issues are compelling more representatives to reconsider the government’s approach to drug policies. In February, the neoliberal FDP aligned with the Green Party and the Left Party to bring to legislative chambers what it refers to as “an outdated and dangerous attitude toward marijuana.” In effect, the right conditions have arisen to change the government’s approach to a drug policy framework that views cannabis use from the position of the basic human rights enshrined in the constitution.


The Current Criminality of Cannabis Use


The German government’s approach to drug use policies have been lackluster.Source

Medical marijuana was legalised in Germany in 2017, and thousands of patients have already benefited from it – although there have been many bottlenecks that have locked out a large number of patients from the distribution system. Currently, there is no stipulated list of ailments that decides which patients can obtain cannabis prescriptions. Since the early 90’s, German drug laws have grown more liberal than those in other countries. With the loose definition of the “small amount” phrase contained in Paragraph 31 of the 1992 reform of Narcotics Law, a drug offender can fend off public interest in prosecuting their case if they can convince the public prosecutor that they only used a small amount personally. Using a small amount personally could mean anything, including growing, producing, importing, exporting, transporting or even selling the drug -- on countless occasions, many Germans have been caught committing these offenses and successfully argued they were for ‘personal use’. 

Until very recently, there had been no definition of the exact threshold for a “small amount”.

According to a ruling of the country’s Supreme Court, a small amount is exceeded when the quantity of THC, the psychoactive compound in the drug, exceeds 7.5g. Individual states have been given the final say for this definition in their jurisdiction. Nevertheless, the existence of these legal loopholes is a tongue-in-cheek acceptance by German policymakers of the fact that the German constitution arguably gives Germans the right to possess and use cannabis.


The Developments Shaping the Government’s New Human Rights Approach to Drug Policies


Angela Merkel and her party are among the fiercest critics of complete legalisation. Source

The German Federal Parliament (Bundestag) is currently deliberating on further decriminalising the possession of marijuana for personal use. Georg Wurth and his coalition of activists have been collaborating with the government to pass legalisation and to also implement local model projects in certain cities under close scientific supervision.

"… We will focus on legal activities this year. With several initiatives, we want to contribute to the Federal Constitutional Court finally returning to this issue. And of course, we won't decrease our efforts with regards to lobbying and public relations." Wurth said in the interview with Civilized. His organization has also published videos that show real-life stories of people with drug convictions, showing them as everyday people who have been charged with a criminal offense due to their indulgence in marijuana. According to polls carried out by Wurth’s organization, public approval for legislation has been on the rise in the last few years, with over 59% of Germans currently favoring complete legalisation

However, these developments will most likely not sit well with Angela Merkel’s CDU, its Bavarian sister party CSU, and the far-right populist AfD, who have all remained staunch critics of legalisation. The center-left Social Democrats will most likely be the ones to tip the scale in favor of legalisation. They’ve been sitting on the fence on the issue, but have reiterated their openness to new ideas.


What These Developments Mean for New Zealanders

German drug policies have been pivotal to those of other countries, especially European countries and other developed countries like New Zealand. As such, we can expect these events to weigh heavily on the minds of policymakers in New Zealand. There will also likely be an increased scientific approach to deciding whether cannabis really can be defined as detrimental to human health, which other policy makers will be able to draw from. New Zealand law makers and those with an interest in marijuana legislation will be keeping a keen eye on the debate as it unfolds in Germany.