Once again the wonderful weekly newsletter from the German Cannabis Assoc highlights a legal issue coming into play in the country
Is the possession of cannabis seedlings with the intention of selling them a trafficking in cannabis, offence
The 5th and 6th Criminal Senate of the Federal Court of Justice, the 3rd Criminal Senate says yes
Order of inquiry by the 3rd Criminal Senate of the Federal Court of Justice to the 5th and 6th Criminal Senate in connection with cannabis seedlings
In an order of inquiry to the 5th and 6th Criminal Senate of the Federal Court of Justice, the 3rd Criminal Senate announces that it already wants to include the possession of cannabis seedlings with the intention of selling them in the offense of trafficking in cannabis, without the need for planting in a plantation.
The case concerns a defendant who brought 899 plants, described by the 3rd Criminal Senate as “cannabis seedlings”, from the Netherlands to Germany in order to grow them in a fully established plantation and sell them for profit. The plants are described as follows in the order of inquiry:
“On April 11, 2023, the defendant drove his car to the Netherlands and took delivery of 899 female cannabis seedlings from a grower and then transported them to the plantation, where he repotted them in larger plant pots and, once they were ready for harvest, obtained yields of the size described. The twelve to 15 centimeter tall seedlings had developed roots. They were placed in planting troughs filled with soil from seven plastic plates (so-called seedling trays).”
The BGH considers the assumption of trafficking to be justified because the subsequent trade quantity can already be determined by taking over the “seedlings”. In addition, seedlings are classified as cannabis by the KCanG. The court is asking other senates whether they will stick to their previous, more restrictive interpretation or whether they will agree with the new assessment.
At the same time, according to the request for a ruling, the Federal Court of Justice would extensively shift the definition of seedlings by restricting the definition of cuttings, with far-reaching consequences for the cannabis industry and cultivation associations:
“According to the findings made by the Regional Court, the planting troughs of the plastic plates contained cannabis seedlings and thus cannabis according to § 1 No. 8 KCanG. The term cannabis seedling – which is not defined by law – includes young plants and shoot parts without inflorescences or fruit, which are to be used for the cultivation of cannabis plants, but which differ from the cannabis cuttings not classified as cannabis by law within the meaning of § 1 No. 6 KCanG in that they are planted (see BT-Drucks. 20/8704 p. 91; Patzak/Fabricius/Patzak, BtMG, 11th edition, § 1 KCanG para. 8; on the similar legal classification according to the previously applicable BtMG Patzak, NStZ 2012, 515).”
Konstantin Grubwinkler, lawyer, commented on the case in a video on YouTube.
Lawyer Sebastian Sobota, in turn commented on LinkedIn as follows: “The 3rd Senate of the BGH wants to abandon the blocking effect of (attempted) cultivation recognized under the BtMG vis-à-vis trafficking. Unlike before, completed trafficking should already be given when taking over “seedlings” (?) – long before planting.”
Dr. Ferdinand Weis, lawyer and board member of the BvCW, warns that the 3rd Criminal Senate wants to understand the introduction of cannabis plants into a planting trough of plastic plates as “planting”, although the Senate also points out that the plants were still intended for potting for subsequent cultivation. “This legal opinion can no longer be reconciled with the principle of clarity of the law and constitutes a violation of the prohibition of analogy. The exemption for cuttings would practically no longer have any scope of application and is in danger of being increasingly eroded,” says Dr. Ferdinand Weis.
At present, the legal opinion of the 3rd Criminal Senate formulated in the resolution of inquiry is not yet spoken law. In order to ensure the uniformity of case law, pursuant to Section 132 (3) sentence 1 GVG, if a senate (in this case the 3rd Criminal Senate) wishes to deviate from the case law of other senates (in this case: the 5th and 6th Criminal Senates), an appeal must be made to the full senate, provided that the other senates have previously declared that they wish to adhere to their case law. The decisive factor will therefore initially be how the 5th and 6th Criminal Senate position themselves.
