Germany partially legalises cannabis consumption!

On 1 April 2024, the new Cannabis Act (Gesetz zum kontrollierten Umgang mit Cannabis und zur ?nderung weiterer Vorschriften, short: Cannabisgesetz, CanG) entered (in most parts) into force. The Act comprises the Consumer Cannabis Act (Konsumcannabisgesetz, KCanG), the Medical Cannabis Act (Medizinal-Cannabisgesetz, MedCanG) and changes to various existing laws.

Most of the provisions are effective from 1 April 2024, except for the provisions governing cultivating associations, which will not enter into force until 1 July 2024.

As a result, the Narcotic Drugs Act (Bet?ubungsmittelgesetz, BtMG) is no longer applicable to any conduct concerning cannabis.

The new Cannabis Act aims for better health protection of consumers, better education and prevention, reduction of the black market as well as drug-related crime and increased protection of minors.

?The most relevant changes are found in the Consumer Cannabis Act:

The Act still stipulates a general ban on exposure to cannabis (including its possession, cultivation, purchase, dealing, trafficking or otherwise passing on or receiving).

However, the Act contains certain exceptions to that ban.

Adults over 18 years of age are now legally permitted the following:

·?????? Possession of up to 25 grams of Cannabis (outside a place of residence)

·?????? Possession of up to 50 grams of Cannabis and three marijuana plants for private use (at a place of residence), (not exceeding 50 grams of cannabis in total)

·?????? Joint cultivation in a non-profit cultivation association (in force from 1 July 2024)

Criminal liability and penalties concerning Cannabis are modified as follows:

Possession of more than 30 grams (outside a place of residence) and more than 60 grams or more than three marijuana plants as well as cultivation not meant for private use (at a place of residence), constitute criminal conduct.

Further punishable acts still include the production, distribution, import and export, transit, dispense, giving someone for immediate use, administering and procuring cannabis of any kind.

All the above-mentioned acts are now punishable with a fine or imprisonment for up to three years. The maximum punishment for these acts has thus been lowered from five to three years.

Felonies and Misdemeanours:

Moreover, some particularly serious cases, which were previously classified as felonies, were demoted to misdemeanours.

Misdemeanours are offences punishable by a minimum sentence of less than one year, whereas felonies are offences punishable by imprisonment of at least one year. Some qualifications as ‘very serious cases’ are now prosecuted only as a misdemeanour, as the minimum sentence has been lowered from imprisonment of not less than one year to only three months. Moreover, also the maximum punishment in these cases has been significantly decreased (from 15 years to five years). These include, for instance,

·?????? the distribution of cannabis by an adult over 21 years to a minor,

·?????? or the import of a ’not small quantity’ (in German: ‘nicht geringe Menge’).

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Other even more serious cases, in contrast, are still classified as felonies. The penalty range also for these cases has been significantly lowered: under the Narcotic Drugs Act, most of these offences carry a minimum sentence of five years, whereas in the case of cannabis, the minimum is only two years.

These include, inter alia:

·?????? commercial distribution of cannabis to a minor,

·?????? appointing a minor (as an adult over 21) to distribute, import or export, sell or offer cannabis not in small quantities,

·?????? and the cultivation/production/trading and import or export of a ‘not small quantity’ as a member of an organised criminal group.

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The classification as a misdemeanour has far-reaching consequences:

·?????? Only in case of a misdemeanour, non-prosecution of petty offences according to section 153 of the German Code of Criminal Procedure (CCP) or non-prosecution subject to the imposition of conditions and directions according to section 153a CCP can be achieved.

·?????? Moreover, as an attempt to commit a misdemeanour is only criminal if explicitly provided by law (whereas attempts to commit felonies always constitute a punishable act), attempts to commit certain offences are hence no longer qualified as criminal.

·?????? Furthermore, the qualification as a misdemeanour opens up the possibility of ending proceedings with a summary penal order, an abbreviated written procedure that does not require a public trial. The reopening of such a proceeding if new evidence or facts are produced, however, only concerns felonies.

·?????? Certain investigation measures (e.g. the use of undercover agents to detect felonies or the taking of DNA samples) only apply to felonies, but not misdemeanours.

·?????? Operating criminal trading platforms on the internet might not constitute separate criminal conduct if the facilitated offence is classified as a misdemeanour and not one of the offences listed in the respective provision of the German Criminal Code.

·?????? Finally, placement in preventive detention might only be put in place for felonies with a certain penalty range.

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Statute of Limitations:

Moreover, the adjustment of the penalty range impacts the statute of limitations. Most of the offences are now punishable by imprisonment of only up to five years and will therefore now lapse after five years, whereas the previous maximum sentence of 15 years resulted in statutory limitation periods of 20 years.??

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Pending cases and old cases:

As a result of the legal changes, all pending and old cases need to be reviewed.

If a charge does not constitute criminal conduct anymore, the investigations will be terminated in relation to that charge. Where the criminal qualification has changed, the charges and/or indictment, including the applicable legal provisions, will need to be amended accordingly.

With regards to old cases, due to an amnesty provision, any penalties that have not been entirely enforced and exclusively concern behaviour that is no longer considered criminal, need to be waived. If a person was additionally convicted of a different (still criminal) offence, the penalty range needs to be newly calculated.

So, any imprisoned persons who (under the new law) could not be prosecuted anymore for the acts for which they have been convicted, need to be released immediately. Of note, if the charges were not exclusively concerning cannabis, but also other narcotics, as will often be the case in practice, the sentence will merely be amended.

Furthermore, any fine that has not been paid, needs to be waived. It is worth mentioning that this de facto privileges those who are paying the fine in instalments, while those who have already paid the fine in full before 1 April 2024 will not receive any money back.

This re-assessment of old cases will create a substantial additional workload for the Public Prosecution Offices, as hundreds of thousands of cases might have to be reviewed.

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Impact on European Arrest Warrant (EAW) cases concerning cannabis:

The partial legalisation of cannabis has a significant impact also on EAW cases:

·?????? If an EAW was issued for any acts concerning cannabis, the EAW might no longer be correct as it refers to the wrong legal provisions (Narcotic Drugs Act instead of Consumer Cannabis Act)

·?????? The facts described in the EAW may now qualify as an offence with a significantly reduced sentence, thus some EAWs may be challenged on the grounds of proportionality. ?

·?????? Accusation EAWs may in certain cases be statute-barred now or sometime soon. If the offence has already fallen under the statute of limitation, a motion for suspension may be filed immediately. If the statute of limitations approaches soon, either a simple wait or a motion requesting suspension can be advisable. If it is clear that the proceedings cannot generate a legally binding judgment in time, a suspension of the EAW might also be issued immediately.

·?????? Conviction EAWs for acts which are no longer punishable or which are already statute-barred should be immediately suspended.

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EncroChat Proceedings:

The previously mentioned legal changes can, furthermore, affect criminal proceedings where EncroChat data is being used as evidence. The data can generally only be introduced as evidence if, according to German law, the requirements to conduct an online search would have been met.

As only a few of the offences under the new legislation have been added to the list of crimes for which online searches are possible, evidence based on EncroChat data) will often no longer be admissible in cases which concerned only cannabis.

This may also affect other proceedings with similar cross-border issues (e.g. SkyECC or Anom).

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23.04.2024, Dr. Anna Oehmichen and Miriam Dudek-Grauduszus, Oehmichen International, Berlin