Source: German Cannabis Business Association
BayObLG Sees Possible Mistake of Prohibition in Cultivating Four Cannabis Plants
26-02-03 | Beck-aktuell reports that the Bavarian Supreme Regional Court (BayObLG) overturned a conviction for cultivating more than three cannabis plants at the same time and referred the case back to the Aichach Local Court. In its decision of 26-02-02 (case no. 206 StRR 315/25), the court criticised that a possible mistake of prohibition by the defendant had not been examined.
In a search, four plants were found; the defendant stated that he intended to grow only three and that the fourth was a newly acquired cutting. The court clarified that this too qualifies as a cannabis plant within the meaning of Section 1 No. 6 KCanG, but that the terms used in the KCanG are open to interpretation, making a mistake of prohibition under Section 17 StGB likely. In addition, only plants or items exceeding the permitted framework may be confiscated.
According to LTO, the distinction between cuttings, young plants and seedlings is not clearly regulated in the KCanG. A rooted, potted plant counts as a seedling and thus as a criminal-law relevant cannabis plant even at an early vegetative stage. The court saw no constitutional concerns. At the same time, it emphasised that the unclear terminology supports the mistake of prohibition. Confiscating the three permitted plants and all equipment was impermissible and should have been limited to the fourth plant.
