By Owen Davies

CANNABIS ON TRIAL - THE KARLSRUHE DECISION

What makes a good law? Does a law imposing criminal sanctions upon people for possessing small amounts of an intoxicant less harmful than some that are legal offend those criteria?

The German Constitutional Court (Verfassungsgericht) in a judgement given on 9 March 1994 in Karlsruhe essentially considered this question in a series of appeals from inferior courts.

In the press the decision was reported in stark terms. "Possession of Cannabis is legalised in Germany" was the Guardian headline. That was by no means an accurate statement of the facts.

However, the arguments rehearsed in the judgements, the reference to conflicting principles of human rights, the analysis of the social and jurisprudential considerations set out in the judgements are instructive in the debate over decriminalisation everywhere.

To an English lawyer what is astonishing is the breadth of evidence and the scope of argument.

This is because the court had to consider whether the Federal Misuse of Drugs Act was compatible with the Basic Law (Grundgesetz). That alone provokes the thought that in the context of getting the balance right in matters of drugs policy alone, reference to an entrenched law would inform and influence it better. In the German case the material upon which the court acted included submissions and evidence from the Ministry of Health, the federal states from whom the appeals had lain as well as evidence and arguments from the defendants and Prosecutors.

What had given rise to the consolidated appeals were a series of decisions of lower criminal courts of appeal in which the judges had held that the letter of the law had been broken but that the provisions of the law prohibiting possession of cannabis was in their opinion unconstitutional.

Before the constitutional court were seven such cases (and it is a characteristic of German law that no defendant is referred to in any report anywhere so that he or she can be identified by name)). The facts of each case varied, all being exclusively concerned with cannabis. In one case, which had come before Judge Wolfgang Neskovic in Lubeck in 1990 a woman was convicted of supplying 1.12 grams of hashish to her husband in prison while she was visiting him. On appeal against her sentence of two months' imprisonment the appeal court had set aside sentence and conviction. In the other cases the acts amounting to infringements of the criminal code had also taken place, in a manner ranging from simple possession of a very small amount of cannabis to supply of a rather lot of cannabis.

It is interesting to note that all of these decisions are by professional judges, schooled in the constitution and principles of the law and used to administering the criminal law and are fully reasoned judgements. Once the court at Lubeck (the supplier of the prisoner case) had taken the plunge, the other judges cited it as persuasive authority and followed it by referring the matter to the constitutional court.

Article 1 of the Basic Law (imposed upon Germany by the Allies after WWII) provides: "The dignity of mankind is unassailable (unantastbar)". In this connection the court considered whether it was a basic human right to intoxicate oneself, in pursuit of the goal of self-determination (Selbstbestimmung), if to do so would not impinge upon the rights and well-being of others. The law guaranteed by article 2,1 of the Basic Law that the citizen should not be subject to unwarranted interference by the state authorities in the development or manifestation (Entfaltung) of his or her personality unless it was warranted. The greater the invasion the more it has to be justified by considerations of public good. Whatever the original justification of the law prohibiting possession of personal amounts had been, it had not worked. This goal should be achieved by means other than the criminal law which were more suitable and the experience of other countries had been that decriminalisation had not lead to an increase in consumption but arguably a reduction.

A principle enshrined in the Basic Law is that of proportionality. Two aspects are identified. First, whether the means employed - the creation of a criminal offence - is both necessary and appropriate (Verhaltnissmassigkeitsgrundsatz) to achieve the end in question. Secondly whether the sanction imposed for a breach of the law is proportionate to the infringement of the law (Ubermassverbot)? The effect of Article 199, is that the means whereby the law applies sanctions should not essentially cause more damage than the supposed evil being countered. Thus the imposition of stigma on otherwise law abiding folk, the means (arrest, imprisonment, public humiliation) of enforcing it, outweighs the public harm of allowing the citizen to make use of recreational drugs. In addition it was argued, other means of combating the perceived danger of ancillary crime, escalation of hard drugs etc., which did not stigmatise the individual, such as public education. The court took this argument on board, but held that in the case of alcohol consumption, intoxication was not the prime aim.

Connected with this principle the court recognised the maxim of non-discrimination. In this respect the court had to consider whether to strike down the law making possession of cannabis a crime, in light of the fact that alcohol and nicotine were lawful. These drugs being arguably more harmful - or in any event at least as harmful - and not made subject of the criminal law. It was argued that it was wrong that a person should be forced to use alcohol which is more harmful than cannabis, in pursuit of the right to intoxicate oneself. In any event, so it was argued, the law was wrong to treat "soft" drugs in the same way as "hard" drugs and in that offended the principle also.

The court held:

1. There is no human right or right guaranteed by the German constitution to "get stoned".

2. The law prohibiting the possession of cannabis is not contrary to the Basic Law as such. The legislator must adopt measures that are necessary and suitable in so far as they restrict personal freedom. The legislator is allowed a margin of appreciation in adopting measures that impose criminal sanctions and this law is within the margins.

3. The imperative of non-discrimination does not require all drugs to be treated the same.

4. The drugs law does not offend against the proportionality principle because in applying the law the enforcement agencies in cases of possession and use which does not affect third parties must have regard to the fact that the law enables the imposition of nominal or small penalties as well as no penalties at all. The investigating authorities must have regard to the proportionality principle in the conduct of their activities.

The court did not declare cannabis to be legal. It made no findings particular to the cases referred to it, as is consistent with the procedure that was invoked. They will have to be reconsidered by the courts of inferior jurisdiction who referred them.

So why has the judgement been hailed as legalising cannabis? It is this last statement of the constitutional position that has attracted the comment that personal use has been legalised.

The court has, in effect described the regime that should govern the pursuit of offenders against the drug law, setting down warnings that investigations and prosecutions may be regarded as excessive measures and in any event fruitless, taking on board the ruling of the highest court, the criminal courts are constrained to impose minimal sanctions on offenders.

The judgement has been widely debated in Germany. There has been no discernable social or political unrest as a result. Parliament is not and cannot be blamed for what the court, whose judges interpret the law, has ruled. Parliament cannot change the Basic Law, which it did not pass and is in conformity with European Human Rights Law. And the court's decision has been accorded the respect due to a decision of a judiciary doing its best to assess the factual evidence in the light of an enshrined constitution.

That is not to say that the decision was not a surprise. But it is being received by the people and discussed by them as a serious and measured ruling.

Consistent with this ruling is the ruling in another case, followed all over Germany, that the possession of cannabis seeds and the growing of a crop of cannabis for personal consumption is not to be visited with the sanctions of the criminal law.

The judgement shows that, given a fixed reference point in terms of objectives sought to be achieved by parliamentary legislation, its compatibility can be reviewed from time to time and over time it can change.

The judgement also ought to help public debate in this country; by identifying the issues that should resolve this emotionally charged subject, clarifying the considerations for and against decriminalisation and according to each their proper weight.

The English courts are not equipped as a forum for resolving these questions, neither is there an overriding entrenched set of principles against which they may set them. It seems a pity that we have to look at a foreign jurisdiction for a decision made by judges on questions of such great importance.

Owen Davies is a barrister practising in London a the field of human rights and protection of the environment. He is a regular visitor to Germany where he is active in speaking on English legal affairs as he is in taking an interest in the German scene from the perspective of a jobbing barrister