The Legal Status of Cocaine in Germany
Cocaine is one of several narcotics seen as banned substances under German law. Under § 29 BtMG (Gesetz über den Verkehr mit Betäubungsmitteln – German Narcotics Act) it is an offence to possess, acquire, traffic, import, distribute and advertise cocaine in Germany. All of these offences are punishable under German law. Furthermore, driving under the influence of cocaine can also lead to punishment depending on the case’s facts and the amount of cocaine used by the offender. Penalties for such a traffic incident can lead to the revocation of a person’s driving licence and criminal sanctions from imprisonment to fines. Our page on driving offences in Germany provides more information on the various sanctions for driving under the influence amongst other offences.
A distinction is drawn in German law when it comes to the amount of cocaine in the case. A “not insignificant amount” under German law is 5 grams of the drug. Should the offence concern amounts above this figure, then the penalty is likely to be greater. If someone is caught in possession of a smaller amount (less than 5 grams) it is possible that they will not even face criminal sanctions. This can be seen by § 31a BtMG (German Narcotics Act). However, they can also face up to five years imprisonment based on § 29 BtMG. Once again, the sentencing depends on the case itself.
As we will see the sanctions for narcotics can range significantly based on the circumstance of the case. The factors taken under consideration when it comes to determining the penalty include:
- First-time offence: Is this a first-time offence or a repeat action?
- Commercial sale: is the drug offence committed as part of a group commercially. This will be indicated by whether it is the person’s primary source of income, the amount of income arising from the sale and whether there is an organised distribution network in place.
- The amount of cocaine involved in the offence.
- Gang membership: if the offence has been carried out in the name of organised crime, it is also more likely the offender will face a heavy penalty.
What are the Legal Penalties for Cocaine Offences in Germany?
As shown above, numerous factors play a role in determining the penalty for a cocaine offence. The sentencing permitted depends on the nature of the offence, and the range of sentencing is, of course, based on the circumstances involved in the case in question. Here are the sentences one can expect from the different cocaine offences:
- Insignificant amounts: As stated earlier for offences such as the possession, acquisition, trading, importing, distributing and marketing of “insignificant amounts” (of 5 grams or under) one can face a prison sentence of up to five years or a fine under § 29 BtMG. However, the process can also be discontinued without sentencing, depending on the case’s facts under § 31a BtMG. This discontinuance is based on the case not being in the public’s interest and where their guilt is deemed to be minor. Consult with a legal professional for more information.
- Not insignificant amounts: If a person is found liable for the following cocaine offences with “not insignificant amounts” can face a heavier sentence. These offences include where a person possesses, distributes or trades in not insignificant quantities of cocaine may be found liable to a prison sentence of one to 15 years under § 29a I BtMG. However, in less severe cases (where it is not related to gang activity, etc.), the accused’s sentence can be limited to between 3 months and 5 years under the same provision.
- Import of significant amounts: the import of significant amounts of cocaine is deemed a serious offence. It is legislated for under § 30 BtMG and can lead to sentencing of up to 15 years. Should this action be committed as part of organised crime, the sentence is less likely to be lenient as § 30a BtMG states that the minimum sentence in such a case is 5 years imprisonment.
- Supplying minors: If a person over the age of 21 is supplying minors with cocaine they can also face sentencing of up to 15 years imprisonment under § 29a BtMG
Driving Under the Influence of Cocaine
Another area in which cocaine can lead to sentencing is in driving under the influence of cocaine. Driving under the influence of cocaine can lead to a driving ban as well as a fine or prison sentence under § 316 StGB (German Criminal Code). This is especially the case where the person in question is involved in a traffic collision. What is important in such cases is determining whether the person was “fit to drive” as § 316 StGB states:
Whoever drives a vehicle in traffic (sections 315 to 315e) although they are not in a condition to drive the vehicle safely due to having consumed alcoholic drinks or other intoxicating substances incurs a penalty of imprisonment for a term not exceeding one year or a fine unless the offence is subject to a penalty under section 315a or 315c.
Under this reading, it can be argued based on the amount consumed. However, it can also be seen as an administrative offence under § 24 StVG and thus no matter the consumption amount a person can face a fine. To determine the amount of cocaine consumed the person in question may be subject to a blood test.
The mere consumption or possession of cocaine while driving can, however, lead to a driving ban as well as penalty points even without a traffic collision. This is legislated for under § 25 StVG. Driving bans can last for a long time, and fines can amount to up to €1500. See our page on driving offences and DUIs for more information. In such cases, it is vital to contact an experienced legal professional for further guidance.
Cocaine Possession in Germany
One of the criminal offences related to cocaine in Germany is the possession of cocaine. It should be noted here that the consumption of cocaine is not listed under these offences. The possession of cocaine in Germany, therefore, involves the accused having the substance on their body and to have a certain degree of control over how it will be used whether for personal use or for commercial/other purposes. They must also know that they have possession of the substance – so having it planted on you without your knowledge is not an offence if it’s shown that you did not know about it. It is also not an offence if the possession of the substance is for the purpose of destroying it or denying its usage. However, once again the accused must be able to demonstrate these motives as grounds for why they were found to have cocaine on their person.
If cocaine is found on a person during a house search then it may be assumed that they have it in their possession for either their own consumption or for commercial purposes. Should you find yourself in a situation where a house or office search has already occurred or may be imminent then make sure to visit our page on house searches. It is also recommendable to get in contact with our criminal law team as soon as possible.
Trafficking of Cocaine in Germany
The trafficking of cocaine in Germany is quite a broad offence that covers the transporting of the substance as well as the transport of the money for it. It also includes the financing of the journey undertaken as well as the recruitment of those trafficking. It is a broad offence that relates to many aspects of the supply chain. Where the trafficking is designed as a commercial enterprise then those found liable are likely to face a heavier sentence. Commercial trafficking can be determined by the amount of the substance trafficked and also by the intended purpose of the process. Where the cocaine has been trafficked in order to be sold with a professional “workforce” involved it is likely to be determined as an example of “commercial trafficking”. Where the case involves small amounts of cocaine and where there is no “workforce” involved it is possible that it could be shown as for personal usage.
Another aspect that can influence the severity of sentence is where there are weapons involved. Weapons do not have to have been used in order for them to play a role in the sentencing. Where a weapon is found onsite or in the possession of those involved it is likely to have an impact on how the case is viewed and the sentence delivered. Once again, cases involving gang membership can carry a higher sentence. In such a case it is crucial to be in contact with a criminal defence lawyer.