Pending lawsuit for Cannabis legalization at the Administrative Court Berlin (file number: VG 14 K 106.15)
The plaintiff is a lawyer, of retirement age, that would like to run a Cannabis specialist shop in Berlin after his career as a lawyer. Since this project can only be possible after a legalization of Cannabis, he has failed a complaint to the Administrative Court Berlin against the Federal Government.
The action is directed at the enactment of a statutory order to remove Cannabis from Annex I to the Narcotics Law (BtmG). This statutory order would have to be issued by the Federal Government if the prohibition of dealing with Cannabis were not tenable for constitutional reasons. Therefore, the complaint concentrates on the statement that the current legal situation constitutes a violation of the general freedom of action, the freedom of the person and the right to equal treatment – in addition, the constitutional requirement of the certainty of laws is also addressed. The general freedom of action basically protects every human action as long as it does not violate the rights of third parties. Here it is pointed out in particular that a democratic state is not entitled to protect people “from themselves” and/or to want to enforce certain moral concepts through legal prohibitions. “It is only in authoritarian regimes, that certain moral concepts are enforced by state repression,” as written by lawyer Volker Gerloff, who represents the plaintiff as a lawyer, in his statement of claim. The fundamental right to liberty is affected here, since the plaintiff would have to accept the risk of facing many years of imprisonment, if he were to open a Cannabis specialist shop under the current legal situation. And finally the unequal treatment with legal drugs – in particular alcohol – is brought up for discussion.
The Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) had already dealt with the ban on Cannabis in the past. Therefore a further emphasis of the complaint lies on a discussion with this iurisdiction. The main focus is on the fact that the BVerfG, in a decision from 1994, gave the legislator the task of regularly reviewing the ban on Cannabis on the basis of scientific findings and, if necessary, rectifying or revoking it. The statement of claim presents the scientific findings on the effect of Cannabis from a medical, socialy-scientific and criminological point of view, coming to the conclusion that – in comparison to the database of the BVerfG 1994 – there can no longer be any justification for a ban on Cannabis today. The aim of the legal proceedings will be to substantiate this assertion by means of appropriate gathering of evidence. So far, requests for evidence have been announced on the medical and social dangers and on the findings of the states which have already carried out regularisations or decriminalisations.
The statement of claim responds briefly and succinctly to the argument that international treaties did not permit Cannabis legalisation, which the opposing party would like to try to put forward, with the objection that the Federal Republic of Germany may not enter into any ties under international law, if constitutionally protected rights are violated as a result. If violations of fundamental rights are established by the existing ban on Cannabis, the Federal Government must immediately and effectively put an end to these violations and international agreements must not impede this. In addition, the aforementioned agreements always contain clauses according to which the respective national constitutional law takes precedence.
So far the complaint has been filed and the Federal Government has had the opportunity to comment on it. To date, the Federal Government has refused to comment on the content of the complaint and is of the opinion that it is already inadmissible. However, the court indicates that the complaint is considered admissible.
The court did not want to announce when oral proceedings would be expected, as numerous other proceedings would be pending beforehand.
The first hearing date has been fixed: It will take place on 28.11.2018 at the VG Berlin/Kirchstraße. Read more about this in the blog article.
The main purpose of a hearing will be to convince the court of the necessity of a comprehensive taking of evidence.
This would be the first time that it would be possible to put an end to the myths and lies surrounding Cannabis in a binding manner.