German Court Allows Cannabis Possession in Prison Cells

In a landmark decision, a German court has determined that inmates can legally possess cannabis in their cells. This ruling states that possession of up to 50 grams of cannabis does not constitute a criminal offense or administrative violation, as prison cells are classified as a ‘habitual residence’ according to Germany’s cannabis law.

The case arose when a defendant serving a two-year and three-month sentence was found with 45.06 grams of cannabis resin in his prison cell, which he intended for personal use. The Berlin court ruled that under the Cannabis Act (CanG), the prison cell qualifies as a habitual residence, thus protecting the inmate from criminal liability for possessing the substance. The court rejected the prosecutor’s assertion that correctional facilities should be exempt from the law’s protections, emphasizing that neither the law nor its legislative history suggests such exclusions.

While the law prohibits cannabis use in military areas, schools, playgrounds, and youth centers, it imposes no similar restrictions in prisons. The court highlighted this intentional gap, noting that the definition of habitual residence encompasses inmates held for extended periods. In this case, the inmate had resided in the cell for over six months, receiving visitors and managing daily life there, thus fulfilling the requirements to be considered a habitual residence.

Although the court ruled that inmates can possess cannabis without facing criminal charges, it also indicated that correctional facilities retain the authority to implement internal regulations regarding its use. Violating these rules could lead to disciplinary actions, even if such infractions do not carry criminal penalties. The court maintained that unless explicitly stated by lawmakers, correctional facilities should not be treated differently from other residences under the cannabis law.

This ruling marks one of the first instances in Germany where cannabis possession rights for personal use extend into prison environments. Germany legalized recreational cannabis for personal use in 2022, becoming the third European nation to do so after Malta and Luxembourg. Initially, the German government aimed to legalize commercial sales, but scaled back those plans amid concerns over compliance with European Union regulations.

Additionally, Germany allows the establishment of cannabis social clubs, where up to 500 adult members can collectively obtain 25 grams of cannabis daily or 50 grams monthly. Membership-based cultivation limits are in place to prevent large-scale operations. Currently, there are 106 cannabis social clubs operating across the country.

Germany is also planning to introduce a trial program enabling certain municipalities to sell cannabis to evaluate the public health effects of such sales; however, this pilot program has yet to launch. The recent court ruling adds another layer to the evolving landscape of cannabis legislation in Germany, particularly concerning the rights of inmates.