German Court Rules Inmates Can Legally Possess Cannabis In Their Cells
A German court ruled that prisoners can legally possess cannabis for personal use
A German court has ruled that prisoners who possess up to 50 grams of cannabis are not committing a criminal offense or administrative violation, as prison cells qualify as a 'habitual residence' under the country's cannabis law.
The Berlin court has recently ruled that a defendant serving a two-year and three-month prison sentence was not criminally liable for possessing 45.06 grams of cannabis resin in his cell, as it was intended for personal use.
The court stated that the prison cell qualifies as a habitual residence under the Cannabis Act (CanG), meaning the defendant's possession did not amount to a criminal offense or administrative violation.
Therefore, it rejected the prosecutor's argument that prison cells fall outside the scope of Germany's cannabis. It said neither the law nor its legislative history supports excluding correctional facilities. While the law bans cannabis use in military zones, schools, playgrounds, and youth centers, it imposes no such restriction on prisons, a gap, the court said, was intentional, highlighting that the concept of habitual residence also applies to inmates held in custody for extended periods.
The court, however, clarified that while cannabis possession in prison cells is not punishable under criminal or administrative law, correctional facilities may still regulate its use through internal rules to maintain order and security. Such regulations can carry disciplinary consequences, even if they fall outside the scope of criminal law.
Despite this, the court found no legal basis to treat correctional facilities differently unless explicitly stated by the legislature, arguing that legal cannabis possession limits apply equally to inmates since prison cells qualify as habitual residences under the law.
The ruling is among the first to extend cannabis possession rights for personal use to prison settings. Under Germany's cannabis law, habitual residence is defined as a place where a person stays under conditions suggesting the stay is not merely temporary, typically presumed after a continuous stay of at least six months, excluding short-term interruptions.
As the inmate had lived in the cell for over six months, received visitors there, and carried out daily life within it, the court deemed it his center of life, meeting therefore the legal definition of habitual residence under the CanG.
Germany legalized recreational cannabis for personal use last year, becoming the third European country to do so after Malta and Luxembourg. The German government initially planned to legalize commercial sales but scaled back the proposal over concerns it could violate European Union laws.
It has also allowed the formation of cannabis social clubs, where adult residents can join as members, up to 500 per club, and receive up to 25 grams of cannabis per day or 50 grams per month. Cultivation is limited based on membership size to prevent commercial-scale operations. According to the umbrella organization representing these groups, there are currently 106 cannabis social clubs across the country.
As well as regulating the possession of recreational cannabis for personal use, Germany is also planning to develop a trial program allowing certain municipalities to sell cannabis to assess the public health impact of cannabis sales. However, the pilot program has not yet been launched.
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