Drug use in Germany: Narcotic Criminal Law
Criminal law relating to narcotics is one of the most important areas of accessory criminal law. Special knowledge is required for professional defence 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.
1. Overview of Criminal Behaviour
“Drug offences” are regulated in the Narcotics Act (BtMG), an accesory criminal law which is not regulated in the criminal code. It is directed against criminal acts of both traders and users. The criminal offences are laid down in §§ 29 to 30b BtMG, the administrative offence in § 32 BtMG.
The law mentions different types of criminal behaviour.
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. For example, an innkeeper who sells cannabis to his guests at cost price in order to retain customers should also act with the necessary intention of enrichment.
“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.
However, consumption is usually preceded by prohibited possession and, before that, prohibited acquisition or cultivation. Punishable action is already affirmed, for example, when a joint is passed from one to the other in a round of potheads. Because everyone who smokes the joint has it for a short time also in his “possession” – which is punishable.
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.
Apart from this, there are other reasons why one should think twice about divulging (previous) use of drugs too freely: Driving licences are almost certain to be revoked when using so-called hard drugs and even regular cannabis use puts driving licences at risk.
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.
For “lighter” drugs (e.g. cannabis), the ratio of THC (tetrahydrocannabinol; provides information about current use) and the carboxylic acid value (provides information about the frequency of use) is important. It becomes critical from 150 ng/ml THC-COOH value, because then usually the withdrawal of the driving licence threatens.
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” means the substances and preparations listed in Annexes I to III of BtMG. Appendix I contains the “non-tradable narcotics” (including Cannabis, codeine, heroin, mescaline, morphine), Annex II “saleable but not prescribable narcotics” (mainly raw materials of medical production such as diamorphine or isocodeine), Annex III “saleable and prescribable narcotics” (including amphetamines, medical cannabis, morphine, opium, tilidine).
Narcotics do not include drugs whose misuse may be punishable under the Medicines Act.
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 unauthorised cultivation, production, trading, importing, exporting, selling, surrendering, otherwise placing on the market, acquiring or otherwise procuring narcotics in any other way. The confusing basic offence 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 offence 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 fulfils 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 cannabis above 7.5 g delta-9-tetrahydrocannabinol (THC), 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.
Even more severe – to not less than two years imprisonment – is the offence 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.
A form of legally tolerated personal consumption can be found in § 31a BtMG. The regulation makes it possible to refrain from prosecution if the offender’s guilt is to be regarded as minor, there is no public interest in prosecution and the offender grows, produces, imports, exports, carries out, acquires, procures or possesses the narcotics in small quantities for his own use only. This provision is applied very differently from region to region: In the “South” of Germany, far less “own consumption” is permissible than in the “North” or “West”.
As a rule, marijuana up to 5 g (leaves and plant), hashish up to 3 g (resin) and LSD up to two “trips” are regarded as “small quantities”. For cocaine and heroin, the similar effect of § 29 V BtMG applies to a maximum of three portions of 150 and 30 mg respectively.
5. Leniency
The leniency is an important instrument in the defence of drug offences.
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” offences 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 offences 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 defence 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 hashish 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 centre and is treated for an existing drug addiction (§ 35 BtMG).
If an accused is suspected of having committed a criminal offence 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).