Drug Trafficking and Narcotics Offences in Germany

The essential norms regarding drug offences can be found in the German Narcotics Act (BtMG – Gesetz über den Verkehr mit Betäubungsmitteln). This law serves as the cornerstone of the legal framework governing the production, distribution, possession, and use of such substances. The BtMG establishes a comprehensive set of regulations aimed at combating drug-related crimes while seeking to balance public health concerns and individual rights. The prohibited substances are listed in Annexes I-III of the BtMG. They include hashish, marijuana, amphetamines, methamphetamines, cocaine, heroin, ecstasy and LSD.

The narcotics law differentiates between the various narcotics and the corresponding quantities concerning the criminal consequences. This distinction enables an efficient criminal justice system where not all “drugs” are treated equally. Especially concerning the amount 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 heavy criminal sanctions.

The BtMG prohibits a range of activities involving controlled substances, including production, trafficking, distribution, possession, and consumption outside of authorised contexts. Offences related to drug trafficking, in particular, are subject to severe penalties under the law.

The enforcement of drug laws in Germany falls under the jurisdiction of law enforcement agencies at both the federal and state levels. These agencies are responsible for investigating drug-related crimes, apprehending offenders, and collaborating with prosecutors to bring cases to trial. In addition to criminal penalties, individuals found guilty of drug offences may also face administrative sanctions, such as the revocation of professional licenses, driver’s licenses, or other privileges. Drug offences are met with varying degrees of penalties depending on factors such as the type and quantity of the substance involved, the nature of the offence, and the individual’s criminal history. Penalties may include fines, imprisonment, or both, with sentences ranging from months to years depending on the severity of the offence.

According to German legislation, many acts, along with actual drug use, are also considered criminal offences. In Germany, drug offences encompass a wide range of activities related to the production, trafficking, distribution, possession, and consumption of controlled substances. Understanding what constitutes a drug offence is crucial for individuals to navigate the legal landscape and for legal professionals to provide effective representation. 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 in Germany is punishable as soon as criminal activity has been started. Therefore, if a sale of drugs ultimately fails, criminal liability does not cease based on the claim that the narcotics were not actually sold.

The BtMG differentiates between “small amounts” and “significant amounts”. In many 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 “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.

The quantities of narcotics relevant under German criminal law play a pivotal role in determining the legal consequences of drug-related offences. By adhering to the thresholds established in the Narcotics Act and understanding the implications of their actions, individuals can face the German legal system more effectively. At Schlun & Elseven Rechtsanwälte, our criminal defence lawyers are well-versed in these thresholds to provide informed advice and advocacy to clients facing drug-related charges.

If you are caught with drugs in Germany, it’s essential to approach the situation carefully and follow appropriate steps to protect your rights and legal interests. A wrong move can prove to be detrimental to your case.

Therefore, firstly, make sure to stay calm and composed. Cooperate with law enforcement officers without answering their questions or providing unnecessary information. Exercise your rights, including your right to remain silent to avoid incriminating yourself while under duress. Avoid making any statements that could be interpreted as admitting guilt. You have a right to work with a legal professional, and it is crucial to exercise that right at this time.

If the police want to search your premises or place of residence, they will need a warrant in most situations. Law enforcement generally needs a valid reason or a warrant to search a person’s belongings, property, or vehicle. Consulting with a legal professional is strongly advised at this point so that they can advise you on your rights in this scenario. It also ensures that the authorities will act following the law once they know you are serious about having legal representation on your side.

While you should cooperate with law enforcement to the extent required by law, you do not have to provide self-incriminating information. If asked for information, provide only the necessary details, such as your name, address, and identification. Do not elaborate on other matters, and do not provide additional information that they can bring up at a later stage. Remember, statements made without legal advice can be used against you. Although it is stressful, it is essential to note what is happening. Document everything that occurs during the encounter, including the names of officers, times, locations, and any conversations that you have. This information can be valuable when creating your defence strategy. Should the law enforcement authorities have acted in a non-legally compliant manner when gaining information, that can prove highly beneficial to your defence.

Once our professionals start working with you, they will examine the evidence, the circumstances of the arrest and the situation more generally, and any potential violations of rights to develop a defence strategy tailored to you. They will then outline your rights in the case and guide you through the legal proceedings, including court appearances, legal strategy, and potential plea negotiations. Our criminal defence lawyers are widely experienced in defending those in this situation. Please do not hesitate to contact us in times of difficulty.

In the context of offences involving narcotics in small quantities, it is often possible to discontinue proceedings under § 31a BtMG or § 29 (5) BtMG. As a rule, these offences are not considered significant enough to proceed in court. According to § 31a BtMG, prosecution can be waived if the offender’s culpability is considered minor, there is no public interest in prosecution, and the narcotic serves personal use. The various state ministries of justice provide guidelines on applying § 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 can be given to drug-addicted offenders in Germany as the principle of “therapy instead of punishment” can apply. This means that in 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 particular circumstances and the type of offence committed. In certain circumstances, prosecutors may opt to terminate proceedings with therapy instead of imprisonment, presenting an alternative legal pathway focused on rehabilitation rather than punitive measures. Under § 153a German Code of Criminal Procedure (Strafprozessordnung, StPO), prosecutors can terminate criminal proceedings when certain conditions are met. This provision allows for the possibility of ending proceedings if the accused agrees to undergo therapy or treatment for substance abuse or addiction. By choosing this route, authorities aim to address the underlying issues contributing to drug-related offences while promoting rehabilitation and reducing the likelihood of reoffending.

Investigations in the field of drug offences in Germany involve a broad spectrum of measures, often accompanied by significant impairments of the rights of the accused. Secret measures, of which the person concerned is not informed, are particularly intrusive. At Schlun & Elseven Rechtsanwälte, we recognise the gravity of such matters and offer comprehensive legal defence services to clients facing drug-related allegations. Our firm leverages experience and expertise to ensure robust legal representation at every stage of the process.

Apartment and house searches frequently lead to rights violations. For an accused person, it is advantageous to be familiar with criminal proceedings or to have a legal representative who understands the legal status in Germany. Checking the legality of investigative measures and objecting to unlawful actions is an essential task of the defence. Our attorneys are skilled at challenging the legality of searches and seizures, scrutinising the evidence, and contesting witness testimony to weaken the prosecution’s case.

Online searches and investigations play a crucial role in the context of drug trafficking and narcotics. Law enforcement agencies utilise advanced online tools to track illegal activities, monitor communications, and gather evidence. This can include surveillance of online transactions, social media activities, and other digital footprints. At Schlun & Elseven Rechtsanwälte, we stay updated on these digital investigative techniques and ensure our clients’ digital rights are protected. We scrutinise the legality of these online measures and challenge any evidence obtained unlawfully to safeguard our clients’ interests.

Our firm offers comprehensive representation in all aspects of drug offence investigations. We provide support during interviews with law enforcement, assist in gathering evidence to support our clients’ defence and advocate for favourable outcomes during negotiations with prosecutors. The complexity of drug offences necessitates hiring an expert defence lawyer early in the process. Our lawyer, Philipp Busse, a former public prosecutor, is highly trained in German narcotics law and is dedicated to assisting our clients through these challenging times.