The most important norms regarding drug offences can be found in the German Narcotics Act (BtMG – Gesetz über den Verkehr mit Betäubungsmitteln). This law defines the nature of drug offences by specifying exactly which substances are prohibited and what sanctions are provided for the various narcotics offences. The prohibited substances are listed in Annexes I-III of the BtMG. They include hashish, marijuana, amphetamines, metamphetamines, cocaine, heroin, ecstasy and LSD.

The narcotics law differentiates between the various narcotics and the corresponding quantities with regard to the criminal consequences. This distinction enables an efficient criminal justice system in which not all “drugs” are treated equally. Especially with regard to the quantity taken, the differentiation between “soft”, “medium” and “hard” drugs becomes clear. Khat, hashish and marijuana are so-called “soft drugs”, for which higher limits apply in principle. Ecstasy, amphetamine and methamphetamine are “medium” drugs. Cocaine and heroin, on the other hand, are considered “hard” drugs, for which even small amounts can lead to serious criminal sanctions.

According to German legislation, most acts outside of actual drug use are also considered criminal offences. Thus, the purchase, sale and acquisition of drugs, their import and export, production and delivery are also punishable. The quantity of narcotics and the circumstances of the individual case are decisive for the penalties imposed.

Many people are not aware that the mere intention of drug trafficking is punishable as soon as criminal activity has been started. Therefore, if a sale of drugs ultimately fails, criminal liability does not cease on the basis of the claim that the narcotics were not actually sold.

The BtMG differentiates between “small amounts” and “significant amounts”. In a large number of cases, a small amount may lead to a discontinuation of the proceedings. If, on the other hand, it is a “significant amount” within the meaning of § 29a BtMG, the accused could face severe punishment, as the crime in question is a crime for which the law provides for a prison sentence of not less than one year. The BtMG does not offer a legal term for a “normal amount”.

The “normal amount” is instead to be determined between the limits of the “small amount” and the “significant amount” for the respective narcotics. For ecstasy (MDMA/MDE/MDEA/MDA), for example, the limit of the small quantity is 3 units of consumption, i.e. 3 pills. The significant amount is set at 250 units of consumption. This demonstrates that the amount deemed to be “above normal” or “significant” can be determined during the proceedings.

The legal assessment is always linked to the net weight of the substance that promotes intoxication. Therefore, this means that the possession or trade of “bad grass” may not be punished as severely as that of “good grass”. In this respect, the THC (tetrahydrocannabinol) content is what counts. The THC content of marijuana usually is around 17-18%. However, there are considerable fluctuations, with the THC content being between 10-30% within marijuana.

In the context of offences involving narcotics in small quantities, it is often possible to discontinue proceedings under Section 31a BtMG or Section 29 (5) BtMG. As a rule, these offences are not considered significant enough to proceed in court.

According to Section 31a BtMG, prosecution can be waived if the culpability of the offender would be considered minor, there is no public interest in prosecution and the narcotic serves personal use. The various state ministries of justice provide guidelines on the application of § 31a BtMG for the prosecuting authorities. The different guidelines in the federal states lead to the fact that the authorities often exercise this leniency differently.

Special treatment is usually given to drug-addicted offenders: the principle of “therapy instead of punishment” applies. This means that in the German narcotics law, under certain conditions, the execution of a sentence can be postponed in favour of therapy. Whether this is possible in individual cases depends on the special circumstances, as well as the type of offence committed.

In the context of narcotics law , a broad spectrum of investigative measures is available to law enforcement agencies. This is often accompanied by considerable impairments of the rights of the accused, especially if secret measures are taken of which the person concerned is not informed. Flat searches can also often lead to violations of rights.

For an accused person who finds themself in such a situation, it can be of great advantage to be familiar with the criminal proceedings or to have a legal representative who knows the legal situation very well. Checking the legality of investigative measures and objecting to unlawful action is an important task of the defence.

The defence has a variety of possibilities to steer the proceedings in a certain direction in the interest of the client. Hiring a defence lawyer at an early stage is essential due to the complexity of drug offences. As a former public prosecutor, our lawyer Philipp Busse is particularly trained in the field of narcotics law and will be happy to assist you. The best thing to do is to contact our law firm directly.