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a month ago

Beugehaft für Kiffer? Eher unwahrscheinlich

The Bild newspaper published an article with the title: "Huh, isn't that legal now? Pot smokers face coercive imprisonment." In the headline titled "Legal, but risky: The challenges for consumers" we informed about the content of this article and pointed out that the Bild newspaper is known to occasionally exaggerate or spread half-truths. In this case, we hoped that this was also true. And our hope has been confirmed.

The renowned criminal lawyer Konstantin Grubwinkler was live on YouTube for over two hours yesterday and answered questions about the topic of cannabis consumption, the threatened coercive imprisonment and the corresponding law. His answer was clear: Coercive or enforcement imprisonment is not imposed so easily. It is even rather unlikely that it will come to that.


Are "potheads" really facing coercive imprisonment?


Coercive imprisonment is not entirely excluded, we must make this clear beforehand, but it is still extremely unlikely. There are certain procedures that can be applied during a police check to avoid coercive or enforcement imprisonment.


Since April 1, 2024, cannabis is legal under certain conditions and with restrictions. An adult person is allowed to carry up to 25 grams of cannabis legally with him. The purchase via the black market is still forbidden. Since home cultivation is only allowed after 01.04, no harvest can have taken place from this to date as cultivation takes a few weeks. Cultivation clubs, which can also legally cultivate and sell cannabis, may only open their doors from 01.07.2024, so this legal source is currently still gone.

Before the Consumer Cannabis Act came into force, one usually had the right to refuse to testify as this could be seen as self-incrimination, as the mere possession of cannabis was already a punishable offense. But now, as possession is legal under certain circumstances, the situation is different. If you carry cannabis with you that obviously comes from illegal sources, you become a witness to a criminal offense (illegal cultivation or dealing). In this case, one is obliged to make a truthful statement. If one refuses, there is a possibility that the judiciary could impose coercive imprisonment, as was mentioned in the picture article. But is this actually likely?


Konstantin Grubwinkler clarifies


Some prosecutor's offices had the idea that when police "catch" cannabis consumers in public, they should open a case against unknown and invite these consumers as witnesses against unknown into a mediation procedure. Because, as described above, one could theoretically only have the cannabis from illegal sources, unless one is a patient. Because the sale of consumer cannabis is and remains a criminal offense.

However, even the possession of illegally acquired cannabis is not a crime since the law was changed. But the prosecution then hits the alleged dealer. The consumer or owner is then just a witness.

A witness has no right to refuse to testify and must tell the truth in court. However, he can refuse questions that would incriminate himself, which is known as the right to refuse information. But some prosecutor's offices argue that this right does not apply because possession is now legal. Therefore, questions about the origin of the cannabis must be answered. If one refuses this, one can theoretically be put in coercive imprisonment for up to six months. This is currently the threat to consumers. However, Grubwinkler says that this is not quite right.

This coercive or enforcement imprisonment can only be invoked if you are obliged to testify! And that's a long and unlikely path.

Tips for dealing with the police during a check

If you're publically consuming cannabis and are stopped by the police, stand firm and don't let yourself be intimidated. (Important, stick to the legal regulations and don't consume in the forbidden zones.) For the assumption that the cannabis comes exclusively from illegal sources is not correct according to Grubwinkler. There are several possible scenarios: You could be a patient who legally gets his cannabis from the pharmacy, or you might have actually grown it yourself before April 1, 2024, when this was still illegal. With the legal amendment, however, three plants and 50 grams at home were made legal.

If you have grown the cannabis yourself, there is no suspect, so no mediation procedures should be initiated against unknown. In addition, you can still exercise your right to refuse information. If you have obtained the cannabis illegally and possibly bought more than 25 grams, you would incriminate yourself, so you can also refuse the statement here.

When the police ask you about the origin of the cannabis, answer politely, "This is my private matter and none of your business." Although it is prohibited to purchase or accept cannabis from illegal sources, it only becomes a criminal offense if more than 25 grams are purchased or more than 50 grams are stored at home.

If the police subsequently announce a procedure, proceed as follows:

  • Always carry your ID with you to prove your identity. This is important because the police could otherwise arrest you until your identity is clarified.
  • Always be friendly and make no statements. You have to tell the truth as a witness, but only in court. Before the police, you are not obliged to make statements or answer questions, regardless of what the police claims.
  • Show the police your ID and say: "I don't have to tell you where I got the cannabis from. That's my private affair. Please take my details and send me an invite."
  • If you receive a summons to proceedings against unknown, you do not have to follow this invitation. You are not obliged to appear at the police. Only when you receive a summons from the prosecutor's office, you have to follow it.
  • If you receive a letter from the police, indicating that it contains a summons from the prosecutor's office, go to the police, take your summons with you, and declare that you do not want to incriminate yourself and want to exercise your right to refuse information.
  • Only then could there be a possibility of enforcement imprisonment under certain circumstances. But this effort would be enormously great and according to Konstantin Grubwinkler extremely unlikely.

The complete video and more interesting answers can be found on YouTube.

Automatically translated by GTP-4 (See original)

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