Cannabis Non-Prosecution Policies in Germany

The project aims 1) to analyze the non-prosecution of cannabis-related consumption offences in Germany,
2) to assess the implementation of the Bundesverfassungsgericht's "cannabis decision" of 1994 and
3) to evaluate the eventual impact of different state-level non-prosecution policies upon consumption patterns. It is part of a larger study coordinated by the Drug Policy Research Center (DPRC) at the RAND Corporation in the United States on the effects of cannabis depenalization in the United States and in several other Western countries.
The primary data collection for this project was carried out simultaneously with that of a comprehensive project examining prosecution and non-prosecution policies of all consumption-related drug offences. The present project distinguishes from this larger one for its focus on cannabis and its comparative approach. Considerable differences have been found in the non-prosecution of consumption-related drug offences across German states.
Project category: Research project
Organisational status: Individual research project
Project time frame: Beginning of project: 2000
End of project: 2006
Status of Project: completed
Project language(s): English

Head(s) of project

Background
The German drug legislation contains several provisions allowing the dismissal of criminal cases against drug users. The most relevant of them is § 31a of the Narcotics Act (Betäubungsmittelgesetz, BtMG), which was introduced in 1992. If there is no public interest in prosecution and the offender's guilt can be considered minor, § 31a BtMG allows the prosecutor's office to dismiss a case without consulting the court. For the application of § 31a BtMG, the crucial concept is that of small amounts (geringe Menge), which is left undefined by the law.
In March 1994 the Federal Constitutional Court ruled that criminal cases involving the possession, purchase or import of small amounts of cannabis for occasional personal use must be dismissed because both the guilt of the offender and the harm caused by the offence have to be considered trivial. Criminal prosecution in such cases can amount to a violation of the principle of proportionality and to disrespect of the ultima ratio character of criminal law. While defending the constitutionality of the German narcotics law, the Federal Constitutional Court argued that large differences in dismissal rates cannot be accepted because they would amount to a serious violation of the right of equal and non-discriminatory treatment. The Constitutional Court then concluded that the infringements of the basic rights of equal treatment and proportionality could be avoided by implementing consistent non-prosecution policies throughout Germany in cases involving the possession of small cannabis quantities for personal use.
Despite this ruling, German federal states are far from having developed and carried out a uniform policy of non-prosecution. In the German federal system, the implementation of the law is entrusted to the single states. The execution of the Constitutional Court's verdict should have been based on a consensual harmonization of state policies: states were supposed to enact uniform guidelines for their prosecutor's offices. Such a consensus, however, has not been reached and therefore considerable regional differences can be assumed to persist.
 
Project Aims
The project has three major aims:
(1)       To understand under which conditions and for which drug amounts criminal cases against cannabis users are dismissed by prosecutor's offices and courts in different German states
(2)       To assess differences in cannabis non-prosecution policies across German states and the implementation of the Federal Constitutional Court's decision of March 9, 1994
(3)       To evaluate the eventual impact of the different non-prosecution policies on cannabis consumption rates and patterns.
The project findings are being compared with those obtained by other parallel, empirical studies carried out in the United States, The Netherlands, Australia and, to more limited degrees, in other Western countries. Paoli and Schäfer are involved in these comparative efforts together with several researchers of the Drug Policy Research Center at the RAND Corporation, which is coordinating the overall comparative study.
 
Project Approach
To fulfill the projects aims, a combination of research methods were employed. In addition to reviewing case law, state instructions for the execution of § 31a BtMG and the relevant prosecutorial and judicial statistics, 2,011 investigative criminal proceedings opened by prosecutor’s offices in 2001 were collected and analyzed. More than 72% of them (1,451) concerned exclusively or partially cannabis. 
The proceedings were drawn from six states with different instructions for execution of § 31a BtMG and, more generally, different approaches to illegal drug use: the south-eastern Land of Bavaria, the city-state of Berlin, the two western states of Hesse and North Rhine-Westphalia, Saxony, which was part of the German Democratic Republic up to 1989, and Schleswig-Holstein in the North. Within these six states, the twenty-four Landgericht (Appeal Court) districts (hereinafter called judicial districts) were selected.
In addition to the case analysis, expert interviews were carried out in eleven of the selected judicial districts. Besides Berlin, the judicial district of the largest city and a rural district were chosen in each of the five remaining states. In each of these judicial districts, at least three police officers, two prosecutors, two judges and one attorney were interviewed. For each type of interviewee a specific protocol was developed.

Project Status and Results
The project primary data collection as well as the whole German study are completed. Articles are now being written to present the German findings and to compare them with those of other countries in peer-reviewed journals. The first two of them will be published in the first half of 2006.
The project could prove substantial differences in both the formulation and implementation of cannabis non-prosecution policies across German states. Several northern and middle states (among others Hamburg, Lower-Saxony, North Rhine-Westphalia and Schleswig-Holstein) have adopted guidelines or recommendations requiring or allowing the non-prosecution in cases involving ten to fifteen grams of cannabis and, in Schleswig-Holstein, up to thirty grams of cannabis. In contrast, the southern states and several eastern ones (such as Baden-Württemberg, Bavaria, Saxony-Anhalt and Thuringia) have issued more restrictive guidelines, ruling that prosecutor's offices and courts can only dismiss cases involving less than six grams of cannabis. The more liberal states also allow dismissals for repeat offenders, whereas conservative states usually rule out this possibility or allow dismissals only in exceptional circumstances. Bremen and Mecklenburg-West Pomerania are the only two states that have issued no guidelines so far.
To a large extent these different rules shape the decision-making of the prosecutor’s offices, though limited variation was also found among the judicial districts of the same state. The percentage of unconditionally discontinued prosecutions (this category includes the cases dismissed under § 31a BtMG as well as those dismissed under § 153 StPO and § 45 para. 1 and 2 JGG) ranges between 49% in Bavaria and over 90% in Berlin and Schleswig-Holstein. Charges and prosecutorial applications for a penal order (Strafbefehl) are correspondingly reversed. Whereas in Bavaria and North Rhine-Westphalia proceedings are initiated in about 30% of all cases, a corresponding decision is taken only in 11% of the cases in Hesse and in 5% of the cases in Berlin and Schleswig-Holstein. 
It was not possible to fully analyze the impact of the different non-prosecution policies pursued by German states on cannabis consumption rates and patterns due to the lack of drug use prevalence time series for the single German states. However, the data indicate that there is no correlation between the prosecution policy adopted and self-reported rates of cannabis consumption. This corroborates similar findings from foreign studies in the field.
 
Project Funding

The project was funded by the U.S. Robert Wood Johnson Foundation and is part of a larger study coordinated by the Drug Policy Research Center at the RAND Corporation on the effects of cannabis depenalization in the United States and in several other Western countries.
The primary data collection was carried out simultaneously with that of a larger project examining prosecution and non-prosecution policies of all consumption-related drug offences, which was commissioned by the German Federal Ministry of Health and Public Security.

Publications (selection)

  • Eine Untersuchung zur Rechtswirklichkeit der Anwendung des § 31 a BTMG und anderer Opportunitätsvorschriften auf Drogenkonsumentendelikte. Kriminologische Forschungsberichte, Berlin 2006, 460 S.
    Schäfer, C., Paoli, L.: Drogenkonsum und Strafverfolgungspraxis.
  • Rosalie L. Pacula, Robert MacCoun, Peter Reuter, Jamie Chriqui, Beau Kilmer, Katherine Harris, Letizia Paoli, and Carsten Schäfer: ‘What Does It Mean to Decriminalize Marijuana? A Cross-National Empirical Examination’, in Björn Lindgren and Michael Grossman, eds., Substance Abuse: Individual Behaviour, Social Interactions, Markets and Politics: 347-370. Amsterdam: Elsevier.
  • Summary of the Project Results [in German]

    Schäfer, C., Paoli, L. (unter Mitarbeit v. Grundies, V.: Drogen und Strafverfolgung. Die Anwendung des § 31a BtMG und anderer Opportunitätsvorschriften auf Drogenkonsumentendelikte. forschung aktuell | research in brief no. 34, Freiburg i. Br. 2006, 26 S.
  • Last update: 14 December 2017
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