Narcotics Offences in Germany: Criminal Offences relating to Cocaine

Cocaine is one of several narcotics that are categorised as prohibited substances under German law. The German Narcotics Act (BtMG) applies to the classification of narcotics as prohibited substances and the standardisation of the associated criminal offences. Cocaine (benzoylecgonine methyl ester) is explicitly listed as a marketable and prescribable narcotic in Annex III of Section 1 (1) BtMG. For mixed forms and so-called “designer drugs,” the BtMG is supplemented by the German New Psychoactive Substances Act (NpSG), which is intended to cover newly emerging drugs.

According to Section 29 (1) BtMG, the cultivation, manufacture, trade, acquisition, and other placing on the market or obtaining of narcotics is a punishable offence. Possession without written permission to purchase is also a punishable offence. Furthermore, driving under the influence of cocaine can also lead to punishment, e.g. under Section 316 German Criminal Code (StGB), depending on the circumstances and the quantity consumed. Driving under the influence of cocaine in Germany can result in the withdrawal of a driving licence.

Numerous factors play a role in determining the penalty for a cocaine offence in Germany. The expected range of punishment depends on the modalities of the offence and always depends on the circumstances of the individual case.

In addition to the basic criminal liability for offences involving cocaine, numerous provisions in Section 29 of the German Narcotics Act (BtMG) can increase or reduce the penalty, or lead to the case being closed. Depending on the circumstances of the individual case and the presence of certain additional requirements or elements of the offence, the penalty for cocaine-related offences can, therefore, vary considerably in Germany. The following circumstances are particularly relevant for determining the sentence:

• Has a criminal or drug offence been committed for the first time or is it a repeat offence?
• Did the offender intend to obtain a continuous source of income of some duration and scope through repeated drug offences and to some extent, i.e. acted commercially?
• Was the drug offence committed as part of organised crime?
• What quantity of cocaine was found?

One of the primary criminal offences in connection with cocaine, among many other forms of dealing, such as production and trafficking, is possession of cocaine under Section 29 BtMG. The pure consumption of cocaine is not listed among these punishable acts. However, the distinction between pure consumption and possession for personal use is often complicated and poses some problems of proof in criminal proceedings. Since cocaine – unlike cannabis, for example – is a “hard drug”, the public prosecutor’s office in Germany is more inclined not to discontinue proceedings, which is why it is highly advisable to be represented by an experienced criminal defence lawyer.

Possession of cocaine in Germany generally requires that the accused carries the substance on their body. This means that the accused must be aware that the cocaine is in their bodily sphere. The offence may, therefore, not be charged if the accused is carrying the substance to destroy it or if it has been planted on them without their knowledge. However, the accused must be able to prove these opposing motives or disprove the intent resulting from the finding of cocaine.

If cocaine is found on a suspect during a house search, it is assumed that they are in possession of it either for their own use or for commercial purposes. On this basis, criminal proceedings can be initiated. If you find yourself in a situation where a search of your private or business premises is imminent or has already taken place, you should seek our legal advice immediately. Our German lawyers will advise you on your rights and obligations in the event of search and seizure measures.

The quantity of cocaine detected is particularly decisive for criminal liability and sentencing in Germany. The BtMG standardises three different quantity concepts, which can be structured differently in the federal states in Germany regarding specific gram quantities. A distinction is made between the “small quantity for personal use” with the possibility of discontinuing proceedings or waiving a penalty following Sections 29 (5), 31a (1) BtMG, the “normal quantity” and the “not small quantity”, for which the penalty is increased in comparison to the “normal quantity”.

The term “small quantity” is not defined in the BtMG. Case law defines a small quantity as up to three units of consumption based on a non-dependent user. In turn, a unit of consumption is understood to be the quantity of a narcotic that is necessary and sufficient to achieve a state of intoxication in the usual form of consumption. Accordingly, it is not the quantity of the substance that is important, but the quantity of active substance contained, i.e. the cocaine hydrochloride. According to the Bundestag in Germany, the limit value for cocaine is 99 mg of cocaine hydrochloride. However, to reduce the workload of the authorities, the actual weight of the cocaine detected may be considered to avoid prosecution. The federal states have different limits in this respect. In Hamburg, for example, the limit is 1g of cocaine, in NRW it is 0.5g of cocaine. It should be emphasised at this point that the authorities can refrain from prosecution or discontinue the proceedings. This is not mandatory. A “small quantity” does not mean that there is no punishment in principle; it constitutes a drug offence under the BtMG and fulfils the corresponding elements of the offence.

The “normal quantity” refers to the quantity of narcotics for which possession, production, purchase and sale regularly fulfil the basic offence of Section 29 BtMG. The limit of the “normal quantity” is up to 5g of pure cocaine. The penalty ranges in Germany from a fine to a five-year prison sentence. According to the normal quantity, a quantity is not small if the normal value is exceeded. A non-minor quantity of cocaine is therefore assumed to be 5g of pure cocaine or more.

The police will take away the cocaine found on your person. It serves as evidence and is essential for further investigation so that it is seized or confiscated following Section 94 of the German Code of Criminal Procedure (StPO). In this case, you are obliged to hand it over following Section 95 StPO. If you refuse to do so, the police may use administrative and coercive measures. Following the seizure, the cocaine can be confiscated under Section 33 BtMG. As a result, the official measures mean that any drugs you are carrying, including drugs other than cocaine, will be taken away from you and will not be returned. The confiscated quantities of cocaine and other narcotics will be destroyed after a specific time.

Section 29 BtMG constitutes the basic offence and provides for a prison sentence of up to 5 years or a fine. The following circumstances are considered as aggravating circumstances regarding cocaine:

• As a member of a gang: The trafficking, cultivation and production of cocaine as a member of a gang that has joined together to continue committing such drug offences is punishable under Section 30 para. 1 no. 1 BtMG with a prison sentence of no less than two years. If a “not insignificant quantity” is determined, the standardised penalty is increased to a minimum of five years imprisonment following Section 30a para. 1 BtMG.
• Supply to minors: If a person over the age of 21 has been found to have supplied cocaine to a minor, to have administered it to a minor, or to have given it to a minor for consumption, they are generally punished with a prison sentence of not less than one year, following Section 29a (1) no. 1 BtMG. If the offender induces the minor to trade in cocaine or otherwise place it on the market, the standardised penalty is increased to a minimum of five years imprisonment under Section 30a (2) no. 1 BtMG.
• Commercial: Commercial handling of cocaine is punishable by a prison sentence of no less than two years following Section 30 (1) No. 2 BtMG.
• Recklessly causing death: Anyone who recklessly causes the death of another person by dispensing or administering cocaine or giving it to that person for immediate consumption is also punished, Section 30 para. 1 no. 3 BtMG.

For the generally increased custodial sentences, the custodial sentence may be reduced in less serious or exceptional cases.

Another area in which dealing with cocaine can lead to a criminal conviction is driving under the influence of cocaine. Anyone who drives a vehicle on the road despite being unable to drive safely because of taking intoxicating substances such as cocaine is liable to prosecution under Section 316 of the German Criminal Code (StGB) and may face a fine or a prison sentence of up to one year. In addition can the driving licence be revoked. Driving under the influence of cocaine also becomes particularly relevant if the person concerned is involved in a road accident. If the influence of cocaine causes an accident in which the life and limb of another person or third-party property is specifically endangered, the penalty under Section 315c StGB is up to five years imprisonment.

Following the provisions of Section 316 and Section 315c of the German Criminal Code (StGB), the person’s criminal liability depends on whether the driver can drive their vehicle safely. To determine the consumption of cocaine, a “drug wipe test” is first carried out on the suspected person, which can generally determine whether narcotics have been consumed at all. A blood test can be ordered to determine the specific value if this test is positive. If such an order is issued, contacting an experienced criminal lawyer is advisable to ensure your rights throughout the investigation and proceedings. In contrast to alcohol, there is no recognised limit for driving under the influence of narcotics. This means that the authorities have discretionary powers, as unfitness to drive must be determined based on all the circumstances of the individual case.

Regardless of the amount consumed, this may constitute an administrative offence under Section 24a (2) StVG, which carries a fine of up to 2,000 euros. According to German law, it is an offence to drive a motor vehicle while under the influence of an intoxicating substance. The effect is indisputably present if the substance can be detected in the blood. Therefore, the question of “fitness to drive” does not arise in the law on administrative offences in Germany. Furthermore, a driving ban can be ordered by law following Section 25 of the German Road Traffic Act (StVG), and the driving licence can be withdrawn.

In cases where there is a threat of driving licence revocation and personal mobility is at stake, it is essential to contact an experienced criminal law expert for further information and support.

The offence of trafficking in cocaine in Germany is very broadly defined. According to the definition, trafficking in cocaine includes any self-serving endeavour aimed at facilitating or promoting the sale of cocaine. It primarily consists of the sale, import or other distribution of cocaine. In addition, it also includes activities that serve the purpose of cocaine trafficking in a broader sense, such as

• the transport of money,
• the recruitment and control of dealers or traffickers,
• the financing of the trade and thus the respective background transactions or
• courier trips.

Trafficking is also assumed in the case of a one-off or occasional activity. The accusation of trafficking in narcotics can, therefore, be made quickly. For example, anyone who sells their drugs to friends is also liable to prosecution for cocaine trafficking.

The criminal liability for cocaine trafficking can be aggravated if the offence is carried out on a commercial basis. This is the case if cocaine trafficking is the defendant’s ongoing source of income of a specific duration and scope, and cocaine trafficking is their primary source of income. There is also an aggravated criminal charge if weapons are involved in cocaine trafficking. These only need to have been carried during an offence that falls under “trafficking”, i.e. they must be within the accused person’s reach in such a way that they could be used at any time during cocaine trafficking.

Overall, this is a broadly defined offence in Germany that relates to many aspects of the supply chain and can already be fulfilled in the run-up to actual cocaine trafficking (e.g. at the start of negotiations on the sale of cocaine). In any case, an experienced German criminal defence lawyer and expert in narcotics offences should be consulted as soon as possible in case of such an accusation.