Abstract:
The German Betäubungsmittelgesetz (Controlled Substances Act) has since 1982 for the first time formally recognized privately run drug treatment programs as an alternative to imprisonment, thus making drug treatment a part of the public system of criminal sanctions. The legal basis of the treatment is a private contract in which the drug user must give his consent to the therapy. The law, however, gives preference to prison-like treatment programs and, indeed, most therapies entail severe restrictions of the client’s constitutional rights - such as restrictions on the freedom of speech, freedom of movement and the right to privacy. Because these restriction make the therapy almost indistinguishable from the punishment, the choice between therapy or punishment represents in fact no real choice at all, and hence the contract falls to meet the "freedom of choice" standards necessary for a valid contract under German constitutional law. The author proposes a statutory solution to this problem: Drug therapy should be based on a law setting forth the permissible restrictions of the client’s rights as well as the scope and legal limitations of the therapeutical measures. In the long run, however, decriminalisation of drug offenses would seem to be a more effective guarantee of the drug user’s freedom of choice.
