The leniency provision of § 31 BtMG (assistance in clearing up offenses, Aufklärungshilfe)
The so-called leniency provision (Kronzeugenregelung) is an important instrument of the defense in drug cases under narcotics criminal law.
Since April 2024, consumer cannabis has been subject to § 35 KCanG, not § 31 BtMG. Voluntary assistance in detection or prevention must concern a cannabis offense connected with the offender’s own offense; where the offender participated, assistance must go beyond their own contribution. The court decides whether the statutory conditions allow a reduction or waiver of sentence. § 37 KCanG additionally governs confiscation. Sentencing also follows the separate cannabis framework: the “not small quantity” threshold remains 7.5 grams of THC (BGH, 23 April 2024 – 5 StR 153/24, paras. 11 ff.). The following discussion of §§ 31 and 33 BtMG concerns other narcotics.
An accused who decides to make a ‘section 31 statement’ (31er-Aussage) should, however, think this through very carefully beforehand. On no account should he give in to the pressure of the police officers to make such a statement immediately after his arrest!
Whereas even in the case of “ordinary” offenses the investigating officers’ efforts are directed at obtaining as much self-incrimination as possible from the person questioned, by circumventing his right to silence and by keeping legal counsel away from him as far as possible, this tendency is even stronger in narcotics criminal law. A popular “lure” in this respect is § 31 BtMG, which offers the accused a mitigation of sentence if he provides so-called assistance in clearing up offenses.
Police officers deliberately exploit the state of shock immediately following the arrest of a drug offender. As early as the first questioning they usually offer to be on first-name terms in order to build up trust. Then they like to tell “horror stories” about the penalties to be expected (which are sometimes even true…). The “race to be first” (Windhundrennen; whoever gives a statement first, wins…) can enormously increase the pressure to confess. Once it has been made, a statement of that kind – with which, after all, one also has to incriminate oneself – can no longer be defused afterwards (cf. Psychology in criminal proceedings).
Police officers have many tricks for deliberately exploiting the weakness of an accused who has only just been arrested. An over-tired accused is kept awake with coffee and cigarettes. If the suspect appears unsure of himself, the officers like to form teams on the “good cop / bad cop” principle. One of the two plays the villain who blusters and threatens. The other presents himself as the friend and advocate of the accused, promising to “put in a good word with the public prosecutor” if the accused talks straight away. Such concessions are completely worthless!
The truth is: police officers have no influence on the level of the sentence. That is decided by the independent court alone.
Promises by the police about sentence discounts at an early stage of the investigation are therefore, at best, completely irrelevant, but as a rule they are actually untrue. One might say that they are not worth the paper they are written on – which is, however, inaccurate in so far as police officers know very well why they usually do not record their promises in the file.
But the truth is also this: drug offenses are punished very severely – particularly in northern Bavaria.
The sentences imposed on drug couriers or dealers in the court districts of Nuremberg, Weiden or Hof, for example, are frequently very much higher than those in Bremen or Frankfurt, say. Foreign couriers in particular, who transport drugs from Holland to Austria, for example, and are stopped on the motorway, often cannot believe it when they learn that they must expect several years in prison.
If an accused has, through his statement or confession, made possible the arrest of those behind the scenes, for example, the court may mitigate the sentence to be imposed pursuant to § 49(1) StGB or may sometimes even dispense with punishment altogether.
“Voluntary disclosure” means that the offender acts on his own initiative. “Prompting from outside” does no harm. There is, by contrast, regularly no voluntary disclosure where the offender makes a confession in the face of overwhelming evidence. The contribution is “substantial” if it makes it possible to identify co-perpetrators or accessories in a manner that can be used in court. The provision does not apply to offenses in which the offender himself was not involved.
The reductions in sentence under § 31 BtMG can be considerable. Sometimes it is even worth disclosing earlier drug deals as well, if such statements are capable of tracking down the “big fish” in the background. Anyone wishing to take such a step should, however, decide with a cool head and only after professional advice. In doing so, the specific sentence to be expected and the hoped-for advantages have to be weighed up. But quite different consequences of a statement must also be taken into view, for example personal relationships, financial side effects (e.g. withdrawal of the driving licence, see above), “boomerang statements” (Rückläufer; on which see below) and procedural consequences.
Police officers are hunters. Even if their humanity and sympathy may be genuine, they are nevertheless pursuing the aim of putting the accused behind bars.
The advice of a police officer can therefore under no circumstances replace the advice of a criminal defense lawyer.
Anyone who makes a comprehensive statement under § 31 BtMG must expect, for example, to be examined as a witness in court very frequently – something which fellow prisoners note attentively.
A leniency witness (Kronzeuge) must also expect that the persons he names will for their part attempt to “shoot back” with statements of their own – by accusing the witness of other offenses. Such “boomerang statements” (Rückläufer) are sometimes true and sometimes false. In any event, before deciding on a statement with which one attacks others, one should be clear about one’s own exposed flanks, which may cause the hoped-for effects of a statement to “backfire”.
A nasty surprise of a leniency witness statement that is frequently overlooked is the confiscation or skimming off of the proceeds of crime. Under § 33 BtMG, drugs found, for example, in a dealer’s flat are seized without the owner receiving any compensation for them.
The provisions on the confiscation of the proceeds of crime (§§ 73 et seq. StGB) were significantly tightened in 2017. Under them, not only the drugs themselves but also the money received for them can be confiscated (so-called confiscation of the equivalent value). The so-called gross principle (Bruttoprinzip) applies here. This means that not only are the drugs and the money obtained for them taken away without compensation. Over and above this, no account is taken of the fact that one has oneself spent money in order to obtain the goods.
So if, for example, 1 kg of cocaine and EUR 5,000 originating from the sale of drugs are found in a drug dealer’s flat, both the drugs and the money are collected by the state.
Anyone who, in addition, tells the police that he has already sold drugs worth EUR 50,000 in the past must expect to have to pay that EUR 50,000 to the state treasury in the end as well. This applies even where the dealer himself paid, for example, EUR 49,000 for the goods to his supplier, that is to say where the profit margin was only very small.
The financial consequences of a comprehensive statement may therefore be ruinous. Police officers usually do not (deliberately) point out these possible side effects of assistance in clearing up offenses during the first questioning shortly after the arrest.