Austria: the prohibition of cannabis before the Constitutional Court

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In Austria, possession of even the smallest amount of cannabis is a punishable offence. However, the cannabis ban is being challenged and will be judged by the country’s Constitutional Court.

Right to privacy and self-determination

On the basis of an individual petition dated October 2021, the Constitutional Court (VfGH) thus initiated proceedings to examine the cannabis ban as to its compatibility with the Austrian constitution (G 323/2021-3, V 252 -253/2021). The subject of the proceedings is whether the current Austrian Narcotics Act (SMG), which also criminalizes the private use of cannabis without benefit from it, is constitutional.

Petitioner Paul Burger was caught walking with a half-joint at the end of 2020 and then went to the Constitutional Court in October 2021 as a person affected by an individual petition. According to the applicant, transactions with cannabis that do not harm others should be protected by the right to privacy and self-determination. With the help of lawyer Dr. Helmut Graupner, known for having passed marriage for all, Paul Burger initiated the procedure before the Constitutional Court.

“We believe that criminalization does not work,” says Graupner. He explains that this “crime” ends up absorbing a large part of the work of the police.

“Legalization or decriminalization would free up the police and the authorities to deal with the real problems, since 80% of drug offenses are ultimately only for personal use. It’s a waste of taxpayers’ money,” he added.

A decision expected for 2022

On January 31, 2022, the Constitutional Court asked the federal government to justify the total ban within eight weeks. Specifically, it is that part of the SMG that criminalizes the private use of cannabis. It is then up to the judges to decide whether the applicable laws are unconstitutional or not.

The decision will notably be based on a number of Supreme Court decisions from other countries, such as Mexico, Italy, South Africa or Georgia, which already have a constitutional approach to dealing with cannabis. The German neighbor has also decided to quickly legalize cannabis.

The decision of the Constitutional Court, which could decide to at least partially decriminalize the use of cannabis, is expected for the second half of this year.

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