Anyone who read the headlines in the spring of 2024 was, for a moment, allowed to feel liberated: cannabis was said to be legal, the joint in the park no longer a matter for the public prosecutor. Two years later, many are experiencing a rude awakening – the house search over three plants, the criminal investigation over a bag discarded at the wrong moment, the indictment over a harvest quantity that the freshly enacted law actually intended to permit. It is precisely here, in the gap between perceived freedom and persisting threat of punishment, that the practical everyday reality of cannabis defense plays out today.
The defense in cannabis and narcotics proceedings is among the established focal points of my work; at the same time, I regularly publish on cannabis criminal law and investigative practice – for instance on the entry into force of the KCanG and the quantity concepts (Ferner, jurisPR-StrafR 8/2024 Anm. 2), as well as on the usability of ANOM and EncroChat data (Ferner, jurisPR-ITR 16/2024 Anm. 4). My remarks on the quantity concepts were taken up by the Grand Senate for Criminal Matters of the Federal Court of Justice in its leading decision on quantity calculation and confiscation (BGH, decision of 3 February 2025 – GSSt 1/24).
A Turning Point with Built-In Contradictions
As of 1 April 2024, the legislature removed cannabis from Annex I of the Narcotics Act (BtMG) and transferred it into two separate sets of rules – the Consumer Cannabis Act (Konsumcannabisgesetz, KCanG) for the non-medical sphere and the Medical Cannabis Act (MedCanG) for the therapeutic sphere. Cannabis and THC are therefore legally no longer narcotics within the meaning of the BtMG; only synthetic cannabinoids remain located there. In Section 2, the KCanG establishes a general prohibition on dealing with cannabis, but exempts certain acts by adults from it, and at the same time noticeably lowers the maximum penalty of the basic offense – to a fine or imprisonment of up to three years.
The decisive structural flaw lies in the method: the legislature closely modeled the penal provision of Section 34 KCanG on Sections 29 et seq. BtMG and took over nearly all consumption-related forms of conduct – production, importation, procuring, acquisition, trafficking – from the old law. The result is a “BtMG light,” which in principle approves of dealing with cannabis but at the same time surrounds it with criminal offenses. The inner tension of this compromise marks every proceeding to this day.
What Is Permitted – and Where Criminal Liability Begins
Adults may possess up to 25 grams of cannabis for personal consumption in public spaces, up to 50 grams at their residence or habitual abode, as well as up to three living plants. Private home cultivation of no more than three plants at a time is allowed, but only in premises serving private residential purposes, and only per person – multiple residences do not multiply the permitted number of plants.
Criminal liability under Section 34(1) no. 1 KCanG arises only above a sliding zone: anyone who possesses more than 30 grams at a place other than the residence, or more than 60 grams in total, or cultivates more than three living plants, commits a criminal offense. Between 50 and 60 grams there is merely an administrative offense (Ordnungswidrigkeit). With regard to acquisition, the threshold of criminal liability runs at more than 25 grams per day or more than 50 grams per month – and indeed, as the legislature has expressly clarified, even where the cannabis was obtained on the black market. For the defense, this sliding-zone architecture is worth its weight in gold, because the precise reference point for the quantity decides between criminal offense, administrative offense, or complete impunity.
The Drafting Flaw in Home Cultivation
Particularly serious is a contradiction that was already flagged during the legislative process: permitted are the cultivation of up to three plants (step one) and the possession of the 50 grams obtained from them (step three) – but the intervening step two, the harvesting, falls under “producing” pursuant to Section 34(1) no. 3 KCanG, which is criminalized without any exempt quantity whatsoever. Cultivation, according to the settled interpretation, encompasses all horticultural efforts aimed at the growth of the plants – watering, fertilizing, illuminating – whereas even the trimming and harvesting of the flowers falls within the stage of producing.
The resulting contradiction in valuation has been resolved by the Federal Court of Justice (BGH) by teleologically reducing the offense of producing: the trimming of one’s own three plants in the context of impunity-protected private cultivation is exempted from criminal liability. For the relationship between cultivation and subsequent producing, the BGH convincingly assumes single-act concurrence (Tateinheit) as a natural unity of action, because there is a single coherent production process.
What remains practically unresolved is the question of the decisive weight: the dry weight is decisive, but freshly harvested material regularly exceeds the 50-gram limit substantially, and a study conducted in North Rhine-Westphalia shows that even harvest-ripe, destemmed plants reach an average dry weight of around 40 grams. Anyone who harvests three plants at once is, biologically speaking, almost inevitably above the permitted quantity. This is where a noteworthy view in the literature comes in, which would include in the calculation only material that is actually intoxicating with a relevant THC content – flowers and flower-adjacent leaves – while stem-like, low-THC parts of the plant should be left out of account. A ruling by the highest court is lacking; nevertheless, the argument can be cogently advanced in the defense.
The Non-Minor Quantity: How the BGH Bypassed the Legislature
The greatest dispute was triggered by the standard example of Section 34(3) sentence 2 no. 4 KCanG, which raises the sentencing range in the case of a “non-minor quantity” to three months up to five years. In the explanatory materials, the legislature had announced that, in view of the legalized quantities, the threshold value would have to lie significantly higher than before. The Federal Court of Justice gave this wish a clear rejection: as early as April 2024, the First Criminal Senate held that the threshold value of 7.5 grams of THC, developed on a scientific basis under the BtMG, remained in force, because the findings on the substance’s mode of action had not changed. The other senates followed suit; rulings by trial courts with higher threshold values were quashed upon the public prosecutors’ appeals.
This line has been heavily criticized – from the legal-policy camp as a disregard of the democratically legitimized paradigm shift, and in the literature, in part, as a violation of the prohibition of analogy under Article 103(2) of the Basic Law (GG). The verdict of unconstitutionality, however, does not hold, because the use of the indeterminate legal concept of the non-minor quantity withstands the requirement of certainty, and the legislature deliberately left its filling-out to the case law. Anyone who wants a higher threshold must amend the law – a corresponding need for reform has been discussed for some time but has so far not been implemented.
A question closely connected with this was settled by the Grand Senate for Criminal Matters at the beginning of 2025: in the calculation of the non-minor quantity, the impunity-protected quantity remains out of account – the starting point is therefore only the quantities that exceed 30 or 60 grams respectively. For confiscation, however, the opposite applies: if a partial quantity serves personal consumption and, taken on its own, complies with the permitted limits, it nevertheless need not be deducted from the object subject to confiscation; only the discretion under Section 74f(1) StGB remains with the trial court.
Trafficking, Importation, and the Seedling Question
Trafficking is to be understood broadly under the KCanG as well, and encompasses any self-serving activity aimed at turnover. Unlike under the BtMG, the importation of cannabis serving profitable sale is wholly absorbed into trafficking, because the KCanG does not provide for an elevated sentencing range for importation in a non-minor quantity. Single-act concurrence between importation and trafficking exists only where part of the delivery is passed on at cost price for lack of self-interest.
A development concerning cannabis plantations deserves attention: the Third Criminal Senate intends to treat the mere taking into possession of seedlings with a view to later profitable sale as completed trafficking – the planting itself supposedly not being decisive. Since this deviates from the line of other senates, it has initiated an inquiry order (Anfragebeschluss); a final settlement is lacking. Anyone defending here should know the state of the dispute, because it decides on the boundary between non-punishable preparation and a completed offense.
Discarding, Money Laundering, Prison Cell: The Practically Relevant Special Cases
Three constellations recur again and again in advisory practice. Anyone who discards cannabis in view of a police check commits – although possession of the quantity would have been permitted – an attempted placing on the market under Section 34(1) no. 10 KCanG, as soon as he accepts as a possibility that a third party gains access to it. The advice to clients is obvious: holding on to it is wiser than throwing it away.
In the case of impunity-protected acquisition on the black market, the question of money-laundering liability under Section 261 StGB arose. The case law of the higher regional courts – for example that of the OLG Hamburg and the OLG Celle – carries out a teleological reduction: acquisition and possession below the threshold values do not lead to money laundering, because otherwise the legislature’s decriminalization intent would be undermined. A BGH ruling is still lacking, but the tendency is unequivocal.
The possession of cannabis in a prison cell (penal accommodation) remains disputed. While the Kammergericht and the LG Bonn classify the longer-occupied cell as a habitual abode within the meaning of Section 3(2) KCanG and thus apply the elevated exempt quantities, the OLG Schleswig and the LG Stralsund deny this. In practice, a prisoner will hardly be able to comply with the storage requirements of Section 10 KCanG in any event and will regularly fulfill at least the administrative-offense provision.
Old Cases, Amnesty, and Intertemporal Criminal Law
A considerable part of the case law of the first two years concerned not cannabis criminal law itself, but the transitional law. Under Section 2(3) StGB, an overall comparison between the BtMG and the KCanG is required in the individual case; the cannabis law is, in this regard, regularly but not always the milder one. If the verdict is converted to the KCanG, the sentence must as a rule already be set aside on account of the milder threat of punishment.
The amnesty rule of Articles 313, 316p EGStGB causes sentences not yet fully enforced to lapse for acts that are no longer punishable under the new law – and indeed immediately by operation of law. The boundaries are clearly drawn: for conduct that remains punishable, for example trafficking in a non-minor quantity, neither the amnesty nor an analogy applies, even where the sentencing range is milder today. Likewise, the mere mitigation of the sentencing range does not justify an early conditional release of the remaining sentence under Section 57 StGB. Competent for a re-determination is the court that decided at first instance, not the criminal enforcement chamber.
One side effect deserves attention: the once-load-bearing cannabis offenses have largely fallen out of the catalogue of Section 100b StPO, because the non-minor quantity is now merely a standard example. For old cases of trafficking in cannabis based on EncroChat, SkyECC, or ANOM data, this has led to considerable dispute over prohibitions on the use of evidence; the BGH focuses on the time of collection, not the time of use.
Sentencing: Where the Defense Sets In
The altered risk assessment has brought an in part considerable lowering of the sentencing ranges – the lesser dangerousness of cannabis compared with other drugs is therefore, according to the unanimous BGH case law, no longer an independent mitigating factor, because it has already been factored into the lower sentencing ranges. By contrast, what remains determinative are the active-substance content, the concrete personal-consumption share, and the circumstance of whether the cannabis was secured before reaching the consumption circuit. If findings on the active-substance content or the personal-consumption share are lacking, the sentence is open to challenge on appeal in cassation – a classic point of attack for the appeal.
A practical note in passing: every conviction under the KCanG entails, via Section 25(1) no. 5 JArbSchG, a five-year prohibition on the employment of young persons. This career-endangering ancillary consequence is easily overlooked in advisory practice, but can hit the client harder than the actual sentence.
Conclusion
The KCanG has decriminalized the consumer, but has placed him within a web of persisting threats of punishment whose boundaries run anything but unequivocally. Anyone who harvests three plants, who lets a bag fall, who buys on the black market – each moves closer to criminal liability than public perception would suggest. By far the greatest problem in practice, however, is importation. Anyone who crosses the border with cannabis from the Netherlands, from Spain, or from another country almost never has just a few grams on them, but rather quantities that quickly exceed the threshold of the non-minor quantity – and then it is no longer the mild basic offense of the KCanG that is at stake, but an especially serious case carrying a sentencing range of three months to five years. Crossing the border is, in legal terms, the most dangerous thing one can do with cannabis, and it is precisely this step that is most thoroughly overlooked in the public euphoria over “legalization.”
Added to this is a political uncertainty hovering over the entire body of rules. The coalition of the Union and the SPD in office since 2025 agreed in its coalition agreement on an open-ended evaluation of the KCanG, the findings of which are to decide the law’s further fate – the Union had previously even demanded a partial reversal of the partial legalization. A complete reversal is regarded as unlikely, yet corrections to the quantity limits, to the prohibition of consumption in public spaces, or to the already delayed pilot projects for commercial distribution are seriously on the table. This state of limbo also explains why some higher courts – for instance on the question of the prison cell or of first-instance jurisdiction – act with marked restraint, and a settled sentencing practice has not yet crystallized everywhere. Anyone defending today must therefore keep in view not only the law as it stands, but also its possible tightening.
In addition, the density of checks at the borders and on the motorways near the borders is high and has by no means declined. Dragnet-style policing (Schleierfahndung), checks without specific cause in the border area, the cross-matching of data from seized crypto-messengers – the investigating authorities intervene at close mesh, and a stockpile once brought across the border can hardly be explained after the fact as a mere personal-consumption quantity. Anyone who ends up in proceedings here without a well-considered defense risks, given a corresponding quantity, a custodial sentence to be enforced. It becomes especially delicate when the accused is a foreign national: then, alongside the punishment, the loss of the residence permit and deportation loom, and pre-trial detention is not infrequently applied for prematurely.
It is precisely in this field that a focus of my work lies. I regularly defend foreign clients as well in cannabis and narcotics proceedings – from the first interrogation, through the detention review hearing, to the main trial. Especially with cannabis, pre-trial detention can often be avoided with an early, carefully constructed defense, and even a custodial sentence to be enforced is by no means inevitable in many constellations: anyone who precisely masters the sliding zones, the active-substance calculation, the rules of concurrence, and the requirements of sentencing, and brings them into the proceedings early, creates the room for maneuver that decides between a suspended sentence and incarceration.
For although the case law has drawn many lines in two years – the upheld THC threshold value, the teleological reduction in home cultivation and in money laundering, the settlement of the quantity calculation by the Grand Senate – other questions such as seedlings, the prison cell, and harvest weight remain open. In this young, craftsmanship-wise unfinished law, there lies more room for maneuver for an experienced defense than the word “legalization” might initially suggest. Anyone affected should make use of it before a border check develops into an arrest warrant.
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