Drug Possession in Germany: Sentencing for Small Quantities

In Germany, the Narcotics Act criminalises different acts in connection with drugs. The unauthorised cultivation, production and trade of narcotics is not permitted. Furthermore, the smuggling of drugs, i.e. the import and export of drugs, is a criminal offence. With every drug, the law differentiates between a small and not small amount. This is especially relevant for people in possession of drugs because the sole possession of drugs is also a crime. The amount of the drugs in possession is highly relevant to the expected sentence.

The German law system has some laws intact that are called “qualification” to a “basic offence”. The qualification always leads to a higher sentence. Offenders who only possess a small amount of drugs do not fulfil such a qualification offence, resulting in a generally lower punishment. The amount of a small quantity is defined differently for each drug. When measuring this, only the actual active substance content of the drug is relevant. That means that if the drug is cut, it will have a smaller active substance content. If that is the case, then even with higher amounts of drugs, a small amount could still be given.

For cannabis, the active substance content is measured with its THC value. With the partial legalisation of Cannabis in Germany, the courts now have to reestablish a new limit for the THC value. Before the partial legalisation, the limit was 7,5 gr THC. This limit stems from a risk evaluation from the 1980s. According to the legislative justification for the new cannabis act in Germany, the court has to reevaluate this limit. So far, the Federal Court of Germany has held on to the old limit. However, one local court in Aschersleben, Germany, has decided against the Federal Court, saying that the new limit should be 37,5 gr THC. On which value for THC the courts will finally settle remains to be seen.

Since the partial legalisation of cannabis in Germany, the possession of small amounts is not a criminal offence anymore. This is different for the following narcotics.

Amphetamines, colloquially known as Speed or Pep, is a synthetic drug whose active substance content is called Amphetamine base. The level of Amphetamine base, therefore, determines whether a small amount is given, which is the case of an Amphetamine base proportion of up to 10 gr. Thus, with a quantity of 100 gr Amphetamines and an active substance content of 10 %, the 10 gr Amphetamine base would be given. If a higher amount of Amphetamine is found, usually an expert opinion on the active ingredients is ordered to examine if it is still within the frame of a small amount. A total quantity of 100 gr usually still falls under a small amount because, in the majority of the cases, the active substance content is around 5%. The most common adulterant used to cut the drug is lactose. Caffeine can also be found in mixtures.

When produced, cocaine often has an active substance content of over 90 % because the dense proportion makes trafficking easier. This way, high volumes can be easily transported across borders. The active substance content of cocaine is called cocaine hydrochloride and is qualified as a “small amount” under the quantity of 5 gr. When being sold to the consumer, the drug will often be cut. This is to maximise profit and facilitate the dosing of the drug. Consuming a pure drug can lead to an overdose with already minimal amounts. Frequently used adulterations are lactose, sugar, and lidocaine, a local anaesthetic that makes lips and flesh go numb when applied to fake a good quality of the drug. Furthermore, the deworming medication Levamisole is added, which is only authorised to be used for animal use. Levamisole is already found in very pure cocaine substances, giving the impression that cocaine is already cut with Levamisole in the production facility.

With this halogenic drug, a small amount is given in a quantity of under 6 mg. This corresponds with approximately 300 “LSD-trips”. One trip is a very small pill. The pills consist of prepared blotting paper, pieces of felt or thin printed cardboard. With this high number, it is rare to meet the offence of a “not small amount.” In general, the qualification of a “not small amount” will be met by persons who are trafficking or producing drugs.

The limit of heroin is 1,5 gr heroin hydrochloride. Out of this amount, you can produce 30 “extremely dangerous” doses á 50 mg. Such a dose can have a lethal effect on persons who are not addicted to the drug. Heroin is often cut with mixtures of paracetamol and caffeine. In addition, food colouring is used to maintain the brownish colour of a highly concentrated substance.

Hallucinogenic mushrooms, also called psilos or magic mushrooms, are a nature-based drug and create a psychedelic, i.e. mind-altering effect. The active substances Psilocybin and Psilocin are listed in the catalogue that lists the forbidden substances of the German Narcotic Act and is, therefore, also considered narcotics. Starting at an amount of 1,7 gr pure Psilocybin, the pure active substance, the qualification of a “not small amount” is met. The weight of the mushroom itself is not relevant.

The growing of Psilocybin mushrooms is equally forbidden as any other action with the drug. The sentencing remains the same. Like with any other narcotic, Section 29 (1), BtMG carries a five-year prison sentence or a fine. However, a prosecution because of this drug is not as common as one because of cannabis or cocaine. So far, the prosecutors in Germany have minimal experience with this type of narcotic, which is why it is possible to influence the course of the criminal proceedings positively. This is also why it is advisable to contact a criminal defense lawyer in time.

Ketamine is used in human and veterinary medicine as an anaesthetic or for pain relief in emergency medicine. It is a prescription-only drug and is not subject to the Narcotics Act. Possession is, therefore, not punishable, which is why there is no benchmark for a ‘small amount’.

Although the acquisition, cultivation and possession, import and export (smuggling), and trade, as well as other forms of distribution of narcotics, are punishable under the Narcotics Act, this does not apply to mere consumption. The consumption of a drug meets the freedom of action and is therefore protected by the German constitution. Colloquially, this is also called “the right to get high”. Any prohibition or ban would be against the constitution and, therefore, is not enforceable. But since the offence of possession is already met by solely holding something in your hands, one of the above-mentioned actions is always going to be equally met when consuming a drug.

Whether a conviction is possible when charged with drug possession depends on the seriousness of the offence and the extent to which there is a public interest in prosecution. Depending on the situation, it is generally possible to get the charges dropped according to Section 153a StPO under a condition. Condition in this context means that the defendant commits to a certain action in exchange for getting the charges dropped. Actions like these could involve,

• making a specific payment to compensate for the damage caused by the offence,
• paying a sum of money in favour of a charitable institution or the state treasury,
• providing other community services,
• or receiving psychiatric, psycho- or socio-therapeutic care or treatment.

The defendant must agree to the application of the acquittal on condition. If consent is given, the defendant must bear the costs of the proceedings. A deadline is then set for the fulfilment of the condition. If the defendant complies with this, the proceedings are finally discontinued. This means that no previous convictions are registered with the Federal Central Criminal Record.