How does German Law Legislate for Drug Offences?
The primary piece of legislation when it comes to drug offences in German law is the German Narcotics Act (BtMG -Gesetz über den Verkehr mit Betäubungsmitteln). This piece of legislation defines the nature of drug offences, defines which substances are illegal and also outlines the sanctions as provided for the various offences when it comes to narcotics. The determination of which substances are deemed to be illegal are outlined under the Annexes I-III BtMG and they cover a large number of substances which are contained in hashish, marijuana, amphetamines, metamphetamines, cocaine, heroin, ecstasy and LSD among others.
In the context of narcotics criminal law, and therefore also for its defence, it is essential that a clear distinction be made between the various narcotics. Not all substances viewed as “drugs” should be deemed illegal and they aren’t. Allowing a distinction to be made allows for a more efficient criminal law system where not all “drugs” are viewed as the same. When it comes to the quantity that a substance can be used in, criminal law also looks at which drug has been consumed. Khat, hashish and marijuana are so-called “soft drugs”, for which higher limits can be assumed in principle. Ecstasy, amphetamine and methamphetamine are “medium” drugs and cocaine and heroin are deemed to be “hard” drugs.
We also have specialised pages concerning “Cocaine Possession in Germany” and “Marijuana Possession in Germany” where you will find out more specific information relating to these particular drugs.
According to the Legislation what Constitute Drugs’ Offences?
According to the legislation, most actions outside of the actual consumption of the drugs are deemed to be criminal offences. These actions include the sale of drugs, the purchasing or acquiring of drugs, the import of the drugs, the export of the drugs, the production of the drugs and the supplying of drugs and they are all deemed to be offences. As we will see, the amount of the narcotics and the circumstances of the case will dictate the sanctions given for the drugs offence.
Factors such as gang membership, whether the person was carrying a firearm at the time of purchase and the offender’s previous criminal record will all be taken into account. Notably, the trading of drugs is a crime and this does not merely mean the sale and purchase of narcotics but also the intention to do so. So, should a sale of drugs fail it is not a defence to claim that the drugs were not actually sold if the intention existed to do so.
The Quantities Involved in Drug Offences
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 a 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 provide a legal term for a “normal amount”.
The “normal amount” is rather 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 course of 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 (tetrahydrocannabino) content is what counts. The THC content of marijuana is normally around 17-18%. However, there are considerable fluctuations, with the THC content being between 10-30% within marijuana.
Discontinuation of the Procedure, Therapy Instead of Incarceration
In the case of small quantities, it is often possible to discontinue the procedure under § 31a BtMG or § 29 (5) BtMG. Some drug offences involving very small amounts are deemed to be not significant enough to bring to court. The various state ministries of justice provide guidelines on the application of § 31a BtMG for the prosecuting authorities. At the same time, this also means that the leniency or lack thereof of the authorities vary greatly between the federal states.
With regard to drug-dependent offenders, the principle of “therapy instead of punishment” prevails in German narcotics criminal law. This means that under certain conditions the execution of a sentence can be deferred in favour of therapy or the crediting of a completed therapy against the sentence. This kind of judgment will be based on the facts of the case and the nature of the offense caused by the defendant.
Investigations in the Field of Drug Offences
In the context of criminal law relating to narcotics, law enforcement authorities often make use of a wide range of investigative measures, particularly clandestine ones, which can significantly encroach on the rights of the persons concerned. For example, when it comes to house searches there are a number of ways in which the investigating body can infringe on the rights of the person being investigated.
Knowing the criminal law procedure in Germany, or having a legal representative who does, can be a great asset to parties who find themselves in this situation. The control of the investigative measures and the objection of their illegality is an important task of the defence. Due to the complexity of many proceedings in narcotics criminal law, the defence has a multitude of possibilities to steer the proceedings in a certain direction in the interest of the client. The early assignment of a criminal defence lawyer is therefore always advisable.
Our Services in the Field of Drug Offences
At Schlun & Elseven Attorneys we use our multidisciplinary nature to provide our clients with comprehensive legal representation in the field of drug offences. Here listed are just some of the services we offer our clients:
- Detailed advice, in-court representation and legal counsel on marijuana possession in Germany. Our detailed page on this topic examines the law relating to marijuana possession in Germany with information on what amounts are considered “insignificant” under German law as well as outlines the potential consequences for such an offence.
- Cocaine Possession: We provide guidance to our clients on the issue of cocaine possession and other offences linked with cocaine in Germany. Our specialised “Cocaine Possession in Germany” page provides greater insight into the consequences of being found guilty of offences linked to cocaine in Germany.
- House searches: At Schlun & Elseven Attorneys we provide specialist legal guidance on the issue of house searches in Germany. The searching of a person’s house is a breach of their privacy rights and must therefore be carried out appropriately and in accordance with the law. Knowing how to act in such a situation is crucial and therefore contacting experienced legal counsel is crucial. How evidence was obtained can often play a crucial role in the outcome of a legal case.
- Driving under the Influence: We provide assistance and in-court representation on issues concerning driving offences in Germany. Our assistance in this area even extends to cases concerning e-scooting under the influence. Read our article to find out more. Contact us today if you need legal counsel in this area.
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