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.