Criminal law relating to narcotics is one of the most important areas of accessory criminal law. Special knowledge is required for professional defense in this area. In addition, there are numerous persistent misconceptions about the law on narcotics. For example, it is a fatal but widespread misconception that “self-use” is always possible without punishment, “hard drugs” are always forbidden, “soft drugs” are always allowed.
Since 1 April 2024, narcotics under the BtMG must be distinguished from consumer cannabis under the Consumer Cannabis Act (Konsumcannabisgesetz, KCanG) and medical cannabis under the Medical Cannabis Act (MedCanG). The following sections explain the differences; the BtMG sentencing ranges do not apply generally to cannabis.
1. Overview of Criminal Behavior
Offenses involving narcotics are regulated in the Narcotics Act (BtMG), an accessory criminal law which is not regulated in the criminal code. It is directed against criminal acts of both traders and users. The criminal offenses are laid down in §§ 29 to 30b BtMG, the administrative offense in § 32 BtMG.
The law mentions different types of criminal behavior.
In general: Without official permission (§§ 3 to 11 BtMG) the acquisition, possession, production, cultivation, placing on the market, trading and almost every further act of and with narcotics are punishable.
In particular, “trade” is interpreted very broadly. Sometimes it is enough to “just pick up the phone”. Basically it is required that one has some kind of financial self-interest in the trade. This is also interpreted very broadly. Under former BtMG case law, an innkeeper supplying cannabis at cost to retain customers was regarded as acting with the necessary intention of enrichment. Cannabis dealing is now assessed under § 34 (1) no. 4 KCanG.
“Preparation” means a mixture of substances or the solution of one or more substances other than naturally occurring mixtures and solutions, irrespective of their physical state. ” Production” means the extraction, preparation, treatment or processing, cleaning and transformation of substances. “Cultivation” means the growing of narcotics by agricultural means. The “cultivation” naturally ends with the harvest. However, it is still “property”, a passing on can mean “trading”.
2. Consumption of Drugs
Pure consumption is not mentioned in §§ 29 to 30b BtMG.
A witness must therefore answer truthfully in court, for example, to the question of whether he has used drugs in the past. – Although he is in principle allowed (§ 55 stop) to refuse to answer questions, when the answer would put him in danger of being prosecuted.
As a rule, the investigating authorities are also bound to their hands if they learn that a “junkie” has regularly used drugs in the past.
Use of narcotics is often preceded by unlawful possession, acquisition or cultivation. Adults may possess cannabis for personal use within § 3 KCanG. This does not create a general right to share it: passing a joint to another person for immediate consumption may be punishable under § 34 (1) no. 8 KCanG. The consumption restrictions in § 5 KCanG, including use in the immediate presence of minors, must also be observed.
These sophistries about possession and acquisition are often enough reasons for the police to make a preliminary arrest or search if the accused are caught in the act of mere consumption.
Drug use can also affect fitness to drive. For cannabis, relevant factors include misuse, dependence and separating consumption from driving; regular use alone no longer automatically establishes unfitness.
Driving licences shall be withdrawn if the person concerned is not suitable to drive a motor vehicle. This has much more serious consequences than the suspension of the driving licence. The driving licence authority receives because of § 45 Mistra, §§ 13 II Nr. 5, II, 17 Nr. 1, 3 EGGVG notifications from the law enforcement authorities on “drug driving”. Furthermore: such a message is possible even when a taxi was usedunder the influence of drugs. A distinction must be made between the substances consumed (“soft” /”hard” drug) and the value found in the body.
§ 13a FeV governs when a medical or medical-psychological report may be required in cannabis cases. Under Annex 4 no. 9.2 FeV, cannabis misuse and dependence in particular exclude fitness to drive. A THC-COOH value of 150 ng/ml is not a statutory automatic ground for withdrawal of a driving licence. Fitness to drive must be distinguished from sanctions for driving under the influence.
In the case of “hard” drugs (e.g. cocaine, amphetamine, heroin), driving disqualifications are possible even with one-off use. However, if the case “deviates considerably from the average case in favour of the person concerned” (which represents a legal assessment question), it may still be possible to prevent the withdrawal of the driving licence.
3. Prohibited Substances
Narcotics are the substances and preparations listed in Annexes I to III of the BtMG. Annex I contains non-marketable narcotics, Annex II marketable but non-prescribable narcotics, and Annex III marketable and prescribable narcotics. The exceptions and particular preparations also matter; for example, the classification of heroin (diamorphine) depends on its intended use. Since April 2024, cannabis and medical cannabis have been governed separately by the KCanG and MedCanG.
Not every medicinal product is a narcotic, but medicinal products may also fall within the BtMG. Misuse of other medicinal products may be punishable under the Medicinal Products Act.
Under § 3 KCanG, adults may possess up to 25 grams of cannabis for personal use; at their place of residence or habitual abode, up to 50 grams and three living plants are permitted. Total possession must not exceed 50 grams. Plant material is measured by dry weight. Private cultivation is subject to § 9 KCanG and the statutory residence definitions (§ 1 nos. 16, 17 KCanG); merely travelling to Germany is insufficient for this purpose. These permissions do not generally authorize dealing, importation or supply.
According to § 2 I BtMG means “substance”:
- chemical elements and chemical compounds and their naturally occurring mixtures and solutions,
- plants, algae, fungi and lichen as well as their parts and components in processed or unprocessed condition,
- carcasses, including live animals, and parts, components and metabolic products of humans and animals in processed or unprocessed condition
- microorganisms, including viruses, and their components or metabolites.
The “legal highs”, which have been very popular for some time, are particularly delicate. The name “legal” is by no means binding, but it is a false friend: these substances are not legal, nor is it possible to include a definitive catalogue of substances. For reasons of concealment, legal highs are usually traded as “bath salts”, “air fresheners” or “cleaners”. They regularly contain so-called synthetic cathinones (such as mephedrone). Powder, tablets, herbal mixtures or capsules are commonly sold. “Spice” attracted attention at the end of the 2000s with small sachets.
Since 26 November 2016, however, the New Psychoactive Substances Act (NpSG) has been in force, which mainly comprises synthetic cannabinoids, phenethylamines and cathinones (and thus in the focus “Legal Highs”).
In the NpSG are all of the following:
- compounds derived from 2-phenylethylamine (i.e. amphetamine-related substances, including cathinones)
- cannabinoid mimetics/synthetic cannabinoids (i.e. substances that have psychoactive effects in the endocannabinoid system)
As with “ordinary” narcotics (see above), the trade, placing on the market, production, acquisition, possession and administration of new psychoactive substances are now prohibited.
4. Quantities
In the prohibited handling of narcotics, the specific quantity is of considerable importance for the sentencing. The law makes certain minimum penalties dependent on this and uses terms that do not belong to the standard repertoire of the German language (“not small quantity”, etc.).
According to § 29 I No. 1 BtMG, the offender can be punished with a fine or imprisonment of up to five years for unauthorized cultivation, production, trading, importing, exporting, selling, surrendering, otherwise placing on the market, acquiring or otherwise procuring narcotics in any other way. The confusing basic offense also punishes special individual actions and picks out certain substances separately.
According to § 29a I BtMG, the sentence in certain cases is not less than one year. This is a so-called qualification, i.e. a criminal offense which, under certain conditions, entails a higher penalty. The minimum penalty of one year is imposed if the perpetrator is over 21 years of age and delivers narcotics without permission to a person under 18 years of age or, contrary to § 13 I BtMG (prescription and delivery as doctor, dentist, pharmacist, etc.).
Trading with “not small quantities” also fulfills the crime, i.e. leads to a custodial sentence of at least one year.
For the “not small amount”, the weight of the anaesthetic found in its administered aggregate state should not be taken into account, but rather the weight of the active ingredient contained therein.
The “purer” the processing, the more of the “pure” – and thus penalty-increasing – active ingredient is contained in the anaesthetic. The “not small” amount of “pure” active ingredient is (approximately) e.g. for ecstasy above 30 g ring-substituted amphetamines such as 3,4-methylene-dioxy-methamphetamine (MDMA), for heroin from 1.5 g dicetylmorphine, for cocaine from 5 g methyl 3beta tropan 2beta carboxylate and for LSD from 6 mg d-Lysergic acid diethylamide.
Under the KCanG, the threshold for a “not small quantity” of cannabis remains 7.5 grams of THC (BGH, decision of 23 April 2024 – 5 StR 153/24, paras. 11 ff.). This concerns active ingredient content, not the gross weight of flowers or hashish, and is distinct from the permitted possession quantities. An offense under § 34 (1) KCanG involving such a quantity is generally a particularly serious case under (3), sentence 2, no. 4, punishable by three months to five years. The BtMG minimum sentence of one year does not automatically apply. Section 34 (4) KCanG covers additional aggravated cases with a minimum of two years; less serious cases carry three months to five years.
Even more severe – to not less than two years imprisonment – is the offense according to § 30 BtMG if the perpetrator cultivates, produces or trades with narcotics without permission and acts as a member of a gang that has joined forces to continue committing such acts, acts commercially, delivers narcotics, gives them to another person or leaves them for immediate consumption and thereby recklessly causes his death.
The heaviest punishment – not less than 5 years imprisonment according to § 30a I BtMG – threatens those who, as a person over 21 years of age, instigate a person under 18 years of age to illicitly trade, import, export, sell, surrender or otherwise place on the market with narcotics or to promote one of these acts, or is engaged in illicit trafficking in not small quantities of narcotics and is thereby carrying a firearm or other objects which, by their nature, are likely and intended to injure persons.
For narcotics, § 31a BtMG permits the prosecution to refrain from pursuing a case involving minor guilt, no public interest in prosecution and a small quantity solely for personal use. It does not legalise possession; application remains discretionary within the statutory conditions. Regional differences in prosecution practice are not different statutory permissions for personal use.
Separately, the court may dispense with punishment under § 29 (5) BtMG for the specified acts involving a small quantity solely for personal use. The provision sets no fixed gram or consumption-unit limits; general figures for LSD, cocaine or heroin cannot replace assessment of the particular substance, active ingredient content and circumstances.
Cannabis is instead subject to § 35a KCanG: for the specified offenses, minor guilt, no public interest and a small quantity solely for personal use may justify refraining from prosecution. Former cannabis guidelines under § 31a BtMG are not current permissions. Unlawful possession becomes criminal under § 34 (1) no. 1 KCanG above 30 grams outside the place of residence or habitual abode, or above 60 grams in total; possession between the permitted and criminal thresholds may be an administrative offense under § 36 (1) no. 1 KCanG. These tolerance bands do not permit dealing or importation.
5. Leniency
The leniency is an important instrument in the defense of drug offenses.
For consumer cannabis, assistance in clearing up or preventing offenses is governed by § 35 KCanG, and confiscation is additionally governed by § 37 KCanG. The following discussion of §§ 31 and 33 BtMG concerns other narcotics; the statutory conditions of the KCanG must be considered separately in cannabis cases.
However, an accused who decides to make a “31 statement” should consider this very carefully beforehand. Under no circumstances should he give in to pressure from police officers to make such a statement immediately after arrest!
While even in the case of “ordinary” offenses the aim of the investigators is to achieve as much self-incrimination as possible by circumventing the defendant`s right of silence and keeping legal counsel as far away as possible, this tendency is further intensified in narcotics criminal law. A popular “lure” is § 31 BtMG, which offers a mitigation of punishment for the accused if he or she provides support for further investigations.
Police officers take advantage of the shock situation immediately after the arrest of a drug delinquent. “Horror stories” are often told about the penalties to be expected (which sometimes even apply…). The “greyhound race” (whoever testifies first wins…) can greatly increase the pressure to confess. Once pronounced, a corresponding objection – with which one must ultimately also burdens oneself – cannot be defused again later.
Police officers have many tricks to exploit the weakness of the accused, who has just been arrested. An overtired accused is kept awake with coffee and cigarettes. If the suspect appears insecure, the officers like to form teams after the moth “good cop /”bad cop”. One of them plays the villain, who rumbles and threatens. The other of the two presents himself as a friend and advocate of the accused, who promises to “put in a good word with the prosecutor” if the accused speaks out immediately. Such concessions are completely worthless!
The truth is that police officers have no influence on the level of punishment. This is the sole decision of the independent court.
Promises by the police about penalty discounts at an early stage of the investigation are therefore in the best case completely irrelevant, but usually even wrong. One could say they are not worth the paper they are written on – which is incorrect, however, as the police officers know very well why they usually do not record their promises right now.
But the truth is also: drug offenses are punished very harshly – especially in northern Bavaria.
The penalties imposed on drug couriers or dealers in the court districts of Nuremberg, Weiden or Hof, for example, are often much higher than in Bremen or Frankfurt. Foreign couriers in particular, who transport drugs from Holland to Austria and are stopped on the motorway, often cannot believe that they have to reckon with several years in prison.
For example, if a defendant’s testimony or confession has made it possible to arrest the svengali, the court may reduce the sentence to be imposed under § 49 I StGB or sometimes even abstain completely from punishment.
“Voluntary revelation” means that the perpetrator is acting on his own initiative. “External suggestions” are harmless. Voluntary revelation, on the other hand, is regularly lacking when the perpetrator confesses to a crushing body of evidence. The contribution is “essential” if it can be used to identify accomplices or assistants in a way that can be used in court. The provision does not apply to acts in which the offender himself was not involved.
The reduced sentences under § 31 BtMG can be considerable. Sometimes it is even worth revealing previous drug deals if these statements are suitable for determining the “big fish” in the background. However, if you want to take such a step, you should make a decision with a cool head and only after professional advice. In doing so, the concrete penal expectations and the hoped-for advantages are to be weighed up. However, completely different consequences of a statement must also be taken into consideration, such as personal relationships, financial side effects (e.g. withdrawal of the driving licence, see above), “boomerangs” (see below), procedural consequences.
Policemen are chasers. Although their humanity and compassion can be real, their goal is to put the accused behind bars.
The advice of a police officer can therefore under no circumstances replace the advice of a defense counsel.
Whoever makes a comprehensive statement in accordance with § 31 BtMG, for example, must expect to be heard very frequently as a witness in court – which is perceived attentively by fellow prisoners.
A witness must also expect the persons he appoints to try to “shoot back” by accusing him of other crimes. Such boomerang-statements are sometimes true and sometimes false. In any case, before deciding on a statement to attack others, one should make aware of which open flanks one has oneself.
An often overlooked nasty surprise of a leniency testimony is the confiscation or absorption of the proceeds of crime. According to § 33 BtMG, drugs found in a dealer’s home, for example, are confiscated without the owner being replaced.
The regulations on asset absorption (§§ 73 and following StGB) became significantly stricter in 2017. Afterwards, not only the drugs themselves, but also the money received for them can be confiscated (so-called confiscation of value replacement). The so-called gross principle applies. This means that not only the drugs and the money obtained for them are taken away without substitution. It is also not taken into account that you have spent money to get the goods yourself.
For example, if a drug dealer’s home contains 1 kg of cocaine and 5 000 euros from the sale of drugs, both the drugs and the money are collected by the state.
Anyone who also states to the police that he has already sold drugs for 50,000 euros in the past must expect to end up paying this 50,000 euros to the state treasury. This applies even if the dealer himself has paid 49,000 euros to his supplier for the goods, i.e. if the profit margin was very low.
The financial consequences of a broad statement may therefore be ruinous. Police officers do not usually (deliberately) point out these possible side effects of the information support during the first questioning shortly after the arrest.
6. Therapy instead of Punishment
Another special feature of narcotics criminal law is that imprisonment can be prevented if the convicted person undergoes therapy in a detoxification center and is treated for an existing drug addiction (§ 35 BtMG).
For cannabis-related dependence, § 39 KCanG likewise makes §§ 35–38 BtMG applicable. Removing cannabis from the BtMG does not therefore remove these therapeutic possibilities.
If an accused is suspected of having committed a criminal offense on the grounds of addiction to narcotics, and if no higher sentence than a prison sentence of up to two years is to be expected, the indictment may already be waived if the accused proves that he undergoes the treatment described in § 35 I BtMG and that his rehabilitation is to be expected (§ 37 I BtMG).