Germany: Federal Court of Justice Sets Limit of THC for Aggravated Cases in New Cannabis Act

On April 18, 2024, the Federal Court of Justice (Bundesgerichtshof, BGH), Germany’s supreme court for civil and criminal cases, held that cannabis containing 7.5 grams of tetrahydrocannabinol (THC) is the limit for a “non-minor quantity” of cannabis. The new German Cannabis Act (Cannabisgesetz, CanG), which entered into force on April 1, 2024, does not define the term “non-minor quantity.” Where the quantity of THC exceeds 7.5 grams, the case is considered particularly serious and is subject to a higher penalty, that is, an aggravated case. (Cannabis Consumption Act (Konsumcannabisgesetz [KCanG] § 34, para. 3, no.?4.)

The Federal Court of Justice’s ruling regarding the new Cannabis Act was met with criticism, in particular because it did not change the limit value for a “non-minor quantity” of THC, which has remained unchanged for over 40 years.

Background ?

Prior to April 1, 2024, the possession of cannabis in a “non-minor quantity” was punishable by imprisonment for a period of one to 15 years. (Bet?ubungsmittelgesetz [BtMG] § 29a, para.?1, no.?2; German Criminal Code (Strafgesetzbuch [StGB]) §?38, para. 2.) The enactment of the Cannabis Act reduced the sentence to a maximum of five years. (KCanG § 34, para. 3.)

When the relevant act involves a “non-minor quantity,” section 34, paragraph 3, sentence 2, number 4 of the new Cannabis Consumption Act punishes possession of the following with imprisonment of up to five years:

• more than 30 grams of cannabis in a place other than one’s domicile or residence;more than 60 grams of cannabis total; ormore than three living cannabis plants.

According to the explanatory memorandum to the Cannabis Act, the legislators wanted to leave it to the courts to determine what constitutes a “non-minor quantity,” taking the legalization into account. (Explanatory Memorandum to the Proposal of the Cannabis Act, at 132.)

The Cannabis Act further includes an amnesty provision. Under this provision, legally enforceable sentences for offenses that are no longer punishable under the new Cannabis Act will be remitted upon the enactment of the new law, provided that the sentence has not yet been enforced. (CanG art. 13; Einführungsgesetzbuch zum Strafgesetzbuch [EGStGB] arts. 316p, 313, para. 1.)

Facts of the Case

The two defendants worked at an indoor cannabis plantation. Both were paid 1,000 euros (about US$1,072) plus free board and lodging by an unknown organization to manage the plantation. Their main task was to look after the plants. However, their work additionally included allowing third parties and vehicles to enter and exit the plantation. Both knew that the cannabis was intended for resale with a profit. During a police search of the property, more than 1,763 cannabis plants with at least 160 kilograms of marijuana and a total quantity of 22,105 grams of THC were found. (Decision para. 2.)

The defendants were found guilty of possession of narcotics and aiding illegal trafficking of narcotics, both in a “non-minor quantity,” by the regional court and sentenced to a term of four years and six months of imprisonment. Both appealed the decision to the Federal Court of Justice on questions of law. (Id. paras.?1, 2.)

Decision

The Federal Court of Justice upheld the conviction for possession of narcotics and aiding illegal trafficking in narcotics, both in non-minor quantities, in accordance with section 34, paragraph 1 and paragraph 3, number 4 of the Cannabis Consumption Act, but annulled the amount of prison time as the new Cannabis Act changed the penalty range for these crimes in favor of the defendants. (Id. paras. 4, 6, 24.) It remanded the case to a different chamber of the regional court for a new decision with regard to the annulled part of the judgment. (Id. paras. 3, 6.)

The Federal Court of Justice set the limit value for a non-minor quantity of cannabis at 7.5 grams of THC. (Id. paras. 7, 11.) The court stated that an average of 15 milligrams of THC is necessary to achieve a state of intoxication. (Id. paras. 11, 13.) It combined this fact with the specific mode of action and dangerousness of THC to establish a limit value of 7.5 grams. (Id. para. 11.) The court acknowledged that, in contrast to heroin, THC is a soft drug and does not result in physical dependence but does induce moderate psychological dependence. (Id. paras. 11, 13.)

In the court’s opinion, the enactment of the new Cannabis Act, which permits a possession of 25 to 50 grams of cannabis per person, did not lead to any changes in the dangerousness of the substance and therefore does not necessitate changing the THC level. (KCanG § 3; Decision para.?19.)

Criticism

As the limit value of 7.5 grams for a non-minor quantity of THC was originally set by the Federal Court of Justice in 1985, the recent ruling has attracted criticism from German lawyers. Some argue that the Federal Court of Justice has ruled against the clearly formulated will of the legislators. In the explanatory memorandum to the Cannabis Act, the legislature stated that due to the legalization of certain quantities of cannabis, it will no longer be possible to adhere to the previous definition of a non-minor quantity of THC and that the limit must be set significantly higher than in the past. (Explanatory memorandum, at 132.) In their opinion, the ruling violates the fundamental criminal law principle of certainty, as the judiciary is prohibited from determining the conditions for punishment against the will of the legislature. Other critics state further that this could potentially give rise to a conflict between the judiciary and the legislature.

Others argue that the non-minor quantity of THC can only refer to the part exceeding the exemption limit. As the possession of up to 25 grams of cannabis per day and 50 grams per months is permitted, the quantity up to 25 or 50 grams must be deducted when calculating the non-minor quantity. Otherwise, with an average content of 15% THC in dried cannabis, just over 50 grams of cannabis would result in a non-minor quantity.

It should be further noted that the Federal Court of Justice temporarily removed the published decision from its website without notifying the public and republished it the following day in a revised version. According to the Cannabis Act, the threshold for criminal liability for possession of cannabis is limited to 60 grams. In its initial decision, the court set the limit at 50 grams. One day after publishing the decision, it corrected it to 60 grams. Furthermore, the court revised a calculation error regarding the determination of the non-minor quantity. In response to criticism, the Federal Court of Justice stated that it first updated the wrong version by mistake. The fact that the Federal Court of Justice did not inform the public about these changes led to further criticism among experts.

Prepared by Eva Dauke, Law Library Intern, under the supervision of Jenny Gesley, Foreign Law Specialist

Law Library of Congress, May 21, 2024

Germany: Federal Court of Justice Sets Limit of THC for Aggravated Cases in New Cannabis Act | Library of Congress (loc.gov)

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