Background
Facts
Decision
Comment


Background

Under the Austrian Act on Addictive Drugs,(1) certain narcotics and addictive drugs may be manufactured, purchased, possessed, imported or exported only for medical or scientific purposes subject to the provisions of the Act. The Ministry of Health may enact regulations regarding, among other things:

  • the import and export of addictive drugs;
  • the cannabis herb and poppy straw; and
  • the manufacturing and treatment of addictive drugs, including imposing limitations on manufacturing quantities and sources and the prescription of addictive drugs.

The purchase, possession, manufacture, import or export of addictive drugs is subject to punishment by imprisonment or monetary penalty.

Within the scope of the Act on Addictive Drugs, addictive drugs are substances under the Single Convention on Narcotic Drugs under the United Nations Convention on Psychotropic Substances. The Ministry of Health may class further substances and preparations as narcotics if they have a similar risk potential due to their effect and circulation. The tetrahydrocannabinol threshold for cannabis is 0.3%; above this threshold, the Act on Addictive Drugs is applicable.

In Austria, as in many other countries, efforts have been made to legalise hemp and cannabis.

Facts

In 2021, an individual application was filed with the Constitutional Court to declare several provisions of the Act on Addictive Drugs as unconstitutional and certain provisions of the Regulation on Addictive Drugs as illegal.

The applicant alleged unconstitutionality of several provisions of the Act on Addictive Drugs and illegality of several provisions of the Regulation on Addictive Drugs. He alleged that the prohibition of cannabis infringed:

  • his right to private and family life according to article 8 of the European Convention on Human Rights (ECHR);
  • the principle of equality according to article 2 of the Basic Law and article 7(1) of the Constitution;
  • the right to personality according to article 5 of the ECHR; and
  • the right to self-determination.

The applicant highlighted the current state of science on the cannabis plant and its dangers, as well as the change in social conceptions. According to the applicant, cannabis causes only a low risk of psychological or physical addiction, and the potential for addiction is lower than for nicotine and alcohol. The applicant also argued that cannabis is not a "starter drug", so the prohibition cannot be justified by the public interest of health protection.

Decision

Through a decision issued on 1 July 2022,(2) the Constitutional Court refused to deal with the application. The Constitutional Court may refuse to deal with an application if it does not have sufficient prospects of success. In a proceeding for the assessment of the constitutionality of an act or the legality of a regulation, the Court must limit the assessment to the concerns raised by the applicant. The Court can assess only whether the challenged provision is unconstitutional or illegal for the reasons given in the application.

The Court ruled that it is within the creative leeway of the legislature to apply stricter rules on the consumption of addictive drugs, covered by legislation under international or community law (in particular, article 36 of the Single Convention on Addictive Drugs, the United Nations Convention on Psychotropic Substances and the Convention implementing the Schengen-Agreement) than on the consumption of other narcotics. The legislature is not prevented from likewise prohibiting or permitting potentially equally detrimental drugs. Against this background, the Court did not see sufficient prospects that the challenged provisions could successfully be declared unconstitutional or illegal.

Comment

It is regrettable that the Constitutional Court did not enter into a closer review of the cannabis ban but instead limited the decision to a formal dismissal of the application. Therefore, any deregulation remains with the legislature. However, for the time being, it seems that there is no majority for further deregulation.

For further information on this topic please contact Rainer Herzig at Preslmayr Attorneys at Law by telephone (+43 1 533 16 95) or email ([email protected]). The Preslmayr Attorneys at Law website can be accessed at www.preslmayr.at.

Endnotes

(1) Suchtmittelgesetz, BGBl I 112/1997 as amended.

(2) J 323/2021-11, V 252-253/2021-11.