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Narcotics law - Offences against the narcotics law
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Colloquially, narcotics are drugs. More precisely, narcotics are substances that are not food or for which an intoxicating effect is the goal of the consumer. This intoxication is associated with either physical or psychological restrictions. Drugs that are permitted and therefore not punishable include "stimulants" such as cigarettes or alcohol. Even if these consumption goods are permitted, it can be similar to other illicit drugs - to mention here would be for example: Cannabis (marijuana) or cocaine - an altered state of consciousness can occur.
In addition to the known drugs, the misuse of medications is also widespread. These include: Antidepressants, opioids or also benzodiazepines. The latter are sedative, muscle-relaxing drugs with, among other things, a sedative effect. In addition to known drugs, the use of cannabis (marijuana) as a medicine is also permitted. The German government is currently working on the general legalization of cannabis, which is expected to take place in 2024.
Drug deaths in Germany
Lawyer for BTM | Number of drug deaths in Germany
Lawyer for BTM | Legal advice
Above all, within the framework of the Criminal Law a close look at narcotics is highly relevant. The Narcotics Act (BTMG), for example, offers a wealth of standards that regulate, among other things, criminal acts relating to narcotics. This is also the case with Section 29 of the BTMG.
§29 Act on Traffic in Narcotic Drugs - Criminal Offences
(1) A penalty of imprisonment for up to five years or a fine shall be imposed on anyone who
1. cultivates, manufactures, traffics in, imports, exports, sells, delivers, otherwise markets, acquires or otherwise obtains narcotic drugs without authorization,
2. manufactures an excepted preparation (§ 2 par. 1 no. 3) without permission,
3. possesses narcotics without at the same time being in possession of a written permit for their acquisition.
Section 29 is not exhaustive here. Nevertheless, it contains or is the central norm of narcotics law. The aim of this norm is to cover the illegal traffic of BTM such as cannabis or cocaine and to make it punishable. It can be seen from the wording of the norm alone that the legislator wants to criminalize just about every possibility of traffic. In case of doubt, any way of obtaining or passing on falls under the "other way". Probably the most important feature of Section 29 is the word "illicit." In principle, everything that is subject to a permit and that does not exist in the specific case is unauthorized. Thus, a permit has a preclusive effect.
If you are accused of an offense, it is then the task of your BTM lawyer to comprehend the facts of the case in their entirety and to take a first look at a possible permit. In this way, it is examined whether the offence required a permit or not. In case of doubt, an exceptional case could also exist. A conceivable permission is given in the case of a medical prescription for cannabis.
Cases of error
Lawyer for BTM | Cases of error
Lawyer for BTM | The cultivation
Again and again, reference is made to § 3 of the BTMG. This regulates the permission to traffic with narcotics. Paragraph 1 of Section 3 of the BTMG states that a permit is required if one wishes to cultivate, manufacture, trade in, import, dispense, sell, otherwise market, acquire or manufacture exempt preparations of BTMs without trading in them. It must therefore be a BTM that is listed in Annexes I to III of the BTMG. These regulate BTMs that are not marketable, BTMs that are marketable but not available on prescription, and BTMs that are marketable and available on prescription.
Cultivation mostly involves plants or fungi. Among them would be exemplary to mention: Cannabis, Aztec or magic sage, Turkish poppy or opium poppy. The cultivation itself has the goal of producing narcotics. In this case, it is not directly a question of success. Even if, due to the specific requirements of the plant to the environment, there are no active substances, the characteristic of cultivation is present. The cultivation itself includes sowing, care and raising.
Thus, almost every handle on these is to be designated as cultivation. A cultivation, in the sense of this law, must also happen consolidated by the human will. If the growth of the plant is a pure process of nature, without man contributing his part, then there is no cultivation. An example of this would be the growth of cannabis through scattered bird feed or the wild growth of mushrooms that could be abused.
The motive for cultivation is also not important. Whether this is done for religious, political, economic, artistic or medical purposes. The motive only comes into consideration if the plant has not been classified as a narcotic. Example: Cannabis as a protective strip in beet cultivation. This is then only cultivated as useful hemp and does not have the motive to be consumed as a narcotic or drug.
Whether the cultivation of narcotics was on an agricultural scale or not is not relevant. Only the cultivation of commercial hemp must take place on an agricultural scale. Cultivation likewise does not presuppose that the person is also the owner of the place. Cultivation by omission is likewise conceivable if it turned out a guarantor obligation to remove the plant. This is a conceivable case if one has ownership or possession of the particular land / dwelling. Cultivation is completed when the perpetrator or a third party starts harvesting.
Cultivation by the authorized user, for example of the apartment, is possible without any problems and is punishable. It can become problematic if another person cultivates, who is not the authorized user. In such cases, a comprehensive examination must be carried out by the BTM lawyer entrusted with the facts of the case. In special constellations, criminal liability of the authorized user in addition to the offender is conceivable.
Subjective crime characteristics
Lawyer for BTM | Subjective crime characteristics
Criminal liability under Section 29 I 1 BTMG requires intent to commit the offense. This must relate specifically to the cultivation of BTM. Conditional intent is also sufficient. The intent is the knowledge and intention of the realization of the offense. In an assessment of the intent of the act, the type of narcotic or the quantity with active ingredient is not important. If there is a mistake, as mentioned above, negligence is still a possibility for criminal liability. Negligence also refers to the use of narcotics or abuse for intoxication purposes.
§ 29 paragraph 4
(4) If the perpetrator acts negligently in the cases referred to in paragraph 1, sentence 1, No. 1, 2, 5, 6, letter b, No. 10 or 11, the penalty shall be imprisonment for up to one year or a fine.
Lawyer for BTM | The production
Trafficking in narcotics
Lawyer for BTM | The trafficking
The term "trafficking" is understood to mean any self-interested effort aimed at promoting the sale of narcotics. It is considered to be trafficking even if it is a one-off or occasional activity. The activity must therefore be directed towards a turnover. The success of the act in the context of a turnover is not a necessary condition. The aim of the trafficking must be to bring the drug on its way to the consumer. If the perpetrator only wants to consume for personal use, this characteristic would not apply.
The transaction does not have to have taken place directly, nor does the drug have to have reached the market. Thus, the activity and not the success of the act is sufficient. Thus, only a profitable intention to sell must be established in the perpetrator. It does not matter whether the offender also puts it into practice or can put it into practice. As a result, efforts to sell or buy are sufficient.
The introduction of narcotics
Lawyer for BTM | The introduction of narcotics
The importation of BTMG is also punishable under Section 29 of the BTMG. Unlike cultivation, production or trafficking, importation is a crime of success. This means that the offense is considered to have been successful if the drug has crossed the border into Germany. Likewise, the attempt is already punishable here. The import itself does not necessarily have to be carried out by the offender personally. Sending the drug by mail, rail or other means of transport also counts as importing. As with the other offenses, intent is required to commit the offense. However, negligence is still possible.
Similar to the importation of narcotics, the exportation is also punishable. Like importation, exportation is a crime of success. Success has occurred when the drug has crossed the border.
The delivery of narcotics
Lawyer for BTM | The delivery of narcotics
The aim of the criminal liability for distribution is to limit the spread of drugs and the expansion of the traffic in narcotics. If trafficking in narcotics is not relevant, then there is still criminal liability for distribution. A prerequisite for criminal liability is the transfer of control to another person with the aim that this person can freely and without restriction dispose of the drug. A consideration or legal basis is not required for criminal liability. Thus, there must be a person who disposes and a recipient. The act is completed when the drug is given to the recipient by means of power of disposal.
Other placing on the market of narcotics
Lawyer for BTM | Other placing on the market of narcotics
In the law, other placing on the market has the character of a catch-all offense. The first forms of criminal liability are relatively narrowly defined, and only the most appropriate act could be subsumed under the respective offense. For this reason, there is the other marketing. This regulation has the goal to close gaps in the legal system, in order to avoid thus a possible impunity of the offender. The term "placing on the market" refers to any possibility that another person, such as the perpetrator, obtains power of disposal over the narcotic drug. An example of other placing on the market is the disposal of drugs and finding them by a third party, but also the surreptitious foisting of drugs would fall under this aspect.
The acquisition of narcotics
Lawyer for BTM | The acquisition of narcotics
Procuring narcotics in any other way
Lawyer for BTM | Procuring narcotics in any other way
The last possibility of committing a criminal offense within the meaning of Section 29 BTMG is obtaining narcotics in any other way. This means that one obtains actual power of disposal over a narcotic drug without a previous owner having acquired it. This offense was also created to function as a catch-all offense. Thus, all possibilities of illegal narcotics traffic are covered without any gaps. The procurer is the one who has the actual power of disposal over the narcotic. He must be able to dispose of it as if it were his own property.
Furthermore, it is necessary that the offender exercises the power of disposal to the extent that he has the possibility and will to dispose of the thing as his own thing. Thus, the drug must be at the free disposal of the offender. In order for there to be no acquisition, the offender must not have obtained the drug with the consent of the previous owner. Thus, the main case of application is obtaining through other criminal acts such as robbery or theft.
Another possibility of the in other way would be the finding of narcotics. As with all other possibilities, the attempt is also punishable. The act is completed when the perpetrator has gained actual control over the narcotic, and it is finished as soon as new control is secured. Here, too, it is the case that the perpetrator must have acted intentionally. A conditional intent is sufficient and in case of doubt a negligent act is also conceivable.
Production of gutted preparation without permission
Lawyer for BTM | Production of excepted preparation without permission
Possession of narcotics without a permit
BTM lawyer | Possession of narcotics without a permit
This provision of Section 29 of the BtMG is also a catch-all provision, which is intended to cover incidents in which the offender has control over the drug, but it cannot be proven how he obtained the drug. For reasons of danger to a possible transfer even of small quantities, the norm has a penal reason. Since the consumption of a drug itself is not punishable, a discussion is invalid if the possession is already punishable.
Exceptions from criminal liability to the norm are not actually provided for, unless the owner can show a permit for the acquisition. It is not sufficient for a criminal offense if only utensils are found that are intended for the consumption of narcotics. It only becomes problematic if residues are found in them and a certain amount is present. Even if these residues are mostly no longer to be used for consumption, narcotic character still exists.
In order for a person to be said to have possession, objectively there must be actual dominion over the narcotic and subjectively there must also be a will to dominate. Thus, already a messenger is to be understood as a possessor who merely transports the drugs in his body. In most cases, the type of possession is irrelevant. Another form of possession is the so-called joint possession. This comes into consideration in particular if several persons jointly acquire or have paid for narcotics.
The actual purpose or motive for possession is not relevant and can be left aside. In contrast to the other provisions, attempted possession is not punishable, and completion of the offense is given in the case of dominance over the drug. Intent is always a prerequisite for this offense, and a conviction for negligence is not punishable in the specific case.
Lawyer for BTM | Other standards
In addition to Section 29 of the BtMG, other norms regulate criminal offenses. This is also the case with § 29a of the BtMG
§29a Act on the Traffic in Narcotic Drugs - Criminal Offences
(1) A penalty of imprisonment of not less than one year shall be imposed on whoever,
1. as a person over 21 years of age, illicitly supplies narcotics to a person under 18 years of age or administers them to him or her in violation of § 13 I or hands them over for immediate consumption; or
2. trafficking in narcotics in not small quantities, manufacturing or dispensing them in not small quantities or possessing them without having obtained them on the basis of a permit pursuant to § 1 I.
(2) In minor cases, the penalty shall be imprisonment from three months to five years.
The special feature of this norm is the upgrading to criminal offenses and a special criminal content and the corresponding harmfulness for the social environment. The term of imprisonment in this case is not less than one year, except for a minor case, and in case of doubt can be up to 15 years.
Delivery to persons under 18 years
Lawyer for BTM | Delivery to persons under 18 years of age
The regulation from paragraph 1 No. 1 provides that persons over the age of 21 are particularly liable to prosecution as soon as they supply, administer or hand over narcotics for use to persons under the age of 18. In simpler terms, an adult must commit the offense on a minor. The term "delivery" is used if the minor can freely dispose of the drugs; the term is the same as in Section 29 I 1 No. 1. Unlike before, the term "delivery" in this standard also includes selling (with countervalue upon transfer) and trafficking.
Administration describes the application of the anesthetic to the recipient's body without the recipient's active participation. An example would be the insertion of a needle and pressing the syringe on the recipient without the recipient's active participation. For a perpetrator to be punished, he must have had intent. This is the case if he knows that the minor is under 18 years of age. Conditional intent is sufficient.
Trafficking, manufacturing, distributing or possessing in not small quantity
Lawyer for BTM | Trafficking, producing, dispensing or possessing in not small quantity
Here, too, the terms are already known. The concepts of trafficking, production, distribution and possession are identical to those in Section 29 I No. 1. The definition of the offense has thus been expanded to include the concept of a not insignificant quantity. This is of central importance for the criminal law on narcotics. Since the BtMG came into force, certain guideline values have been set by the BGH for the common narcotics. What matters here is not the weight of the drug itself, but rather the amount of active ingredient is best suited to more closely quantify a quantity that is not small. Here are a few examples:
- Amphetamine: 10 g
- Benzodiazepines: 120 mg up to 4,800 mg depending on benzodiazepine.
- Cannabis: 7.5 g THC (approx. 10 grams in NRW)
- Hashish: 7.5 g THC
- Methamphetamine: 5.0 g
- Cocaine: 5.0 g
- MDMA: 30g
- Heroin: 1.5 g
- Cannabinoids: 2 / 6 g
- Methadone: 3 g
- Subotex: 450 mg
Section 29 of the BtMG: What does it say?
Lawyer for BTM | The § 30 of the BtMG: Crimes
Section 29 of the BtMG refers to the possession of narcotics and regulates that this is generally punishable. However, there are exceptions to this rule, especially if the possession is for the purpose of medical or veterinary care or for other legitimate purposes.
When it comes to possession of narcotics, it definitely makes sense to contact a BTM lawyer. This lawyer can provide comprehensive legal advice and, if necessary, represent the interests of his client in court.
The § 30 of the BtMG: Offences
Lawyer for BTM | The § 30 of the BtMG: Crimes
The § 30 of the BtMG sounds almost identical to the previous norms of the BtMG for a borrowing for the first time. However, this provision includes the gang-like commission of an offense against public health. It also includes cultivation, production and trafficking by gangs that have joined forces to commit such acts. The import of narcotics is not included. A gang can be defined as a group of three persons who want to commit criminal offences according to a certain law. However, the concept of a gang is controversial.
Also included is the commercial dispensing, administering or handing over for direct consumption by persons. Here, too, the standard takes up the already declared elements of § 29a (1) No. 1. What is new here, however, is the constituent element of the offense being commercial. Anyone who wants to generate a continuous source of income of some duration and scope by repeatedly committing an offense is acting commercially. Here again, the attempt is punishable and intent is required. The basic offense of § 29 I No. 1 has all the requirements that also apply to § 30 BtMG.
The § 30 of the BtMG: Offences
Section 30b BtMG is again somewhat detached from the previous standards. Thus it says in this:
§30b Act on the Traffic in Narcotic Drugs - Offenses
§ Section 129 of the Criminal Code shall also apply if an association whose purposes or whose activities are aimed at the unauthorized distribution of narcotics within the meaning of Section 6 No. 5 of the Criminal Code does not exist or does not exist only in Germany.
Thus, the offense under Section 30b BtMG is the formation of a criminal organization, participation in such an organization or support of such an organization, soliciting members or supporters for it. Participation in such an association is consensual incorporation into the organization. Formal joining is not necessary and implied action is sufficient. Involvement does not necessarily mean direct participation in individual criminal acts; rather, any activity for the purposes of the association is sufficient.
The § 31 BtMG: Mitigation or waiver of punishment
Lawyer for BTM | The § 31 BtMG: Mitigation or waiver of punishment
§Section 31 of the Act on Traffic in Narcotic Drugs - Mitigation or Waiver of Punishment
The court may mitigate the penalty under section 49 I of the Criminal Code or, if the offender has has not forfeited a term of imprisonment of more than three years, shall refrain from imposing a sentence if the offender has
1. by voluntarily disclosing his knowledge, has substantially contributed to the discovery of an offense under sections 29 to 30a that is related to his offense; or,
2. voluntarily discloses his knowledge to a department in such a timely manner that an offense under § 29 III, § 29a I, § 30 I, § 30a I which is related to his offense and which he knows is planned can still be prevented. [...]
By this norm, the court has the possibility to mitigate a sentence, or to refrain from it altogether, if a prison sentence of more than three years is not forfeited. However, this requires a voluntary disclosure of knowledge by the offender. This knowledge must then in turn have contributed significantly to the discovery of the crime, beyond the contribution of the disclosing party. According to No. 2, there is also the possibility that the offender disclosed his knowledge to an office in such a timely manner that certain serious narcotics offenses could be prevented. These offenses are also listed conclusively in No. 2.
It is also interesting to note that not only the court has the option to refrain from imposing a penalty, but also the public prosecutor's office has the option not to file a public complaint. If a complaint has already been filed, the court can suspend the proceedings until the start of the main hearing. However, the public prosecutor's office or the defendant must agree to this. The aim of this norm is to break through the aforementioned gangs and associations. However, it is equally important to criminal prosecution of committed or planned criminal acts. Also, an aim of the norm is to de, to show offenders an easier way to get away from illegal business.
However, even here there are difficult points for the defense of the offender by a lawyer for BTM. Thus, the question of self-incrimination or guilt is at issue here. There is also the possibility of false testimony and thus the incrimination of innocent people. Should one become a permanent witness through the testimony, this may also result in a psychological burden for the disclosing party.
The § 31a BtMG: refrain from prosecution
The § 31 of the BtMG regulates the possibility of waiving the penalty. This is the case if there is a violation of the BtMG in the form of § 29. The prerequisite for this is that the accused had the narcotics in his possession only for personal use. One speaks also here of small quantities. It is irrelevant whether the accused cultivates, manufactures, imports, exports, carries out, acquires or otherwise obtains or possesses the small quantities for personal use. Prosecution is to be completely waived if the offender possesses small quantities of BTM in a drug consumption room merely for personal use, which can be tolerated under Section 10a, without at the same time being in possession of a permit for the acquisition.
On the other hand, there must be no circumstances that favor the public interest in the act and the prosecution. For more information on the term "not small amount", see above. Furthermore, it is not uncommon for the dismissal of proceedings to be tied to conditions. For example, the offender may have to undergo therapy or even provide evidence of negative consumption. The aim of Section 31a BtMG is to relieve the prison system and at the same time to enable an appropriate response to the possession of narcotics for personal use.
The § 32 BtMG: administrative offenses
Lawyer for BTM | The § 32 BtMG: Misdemeanors
The § 32 of the Narcotics Act regulates the most diverse administrative offenses within the scope of narcotics law. Thus, § 32 BtMG logically refers to the most diverse sections of the BtMG. For example, a corresponding administrative offense can exist if one does not properly notify that one is participating in narcotics traffic or cannot present a corresponding license for import and export.
The Narcotics Act can provide for a fine of up to €25,000.00 in such cases. In the lowest case, however, it is 5.00 €. If the offender acts negligently, the fine can be up to 12,500.00 €. The responsible authority for fines is the BfArM. This authority is the Federal Institute for Drugs and Medical Devices. Also of importance is the statute of limitations in the cases of administrative offenses. The regular statute of limitations is three years, and in the case of negligence, it is still two years.
The § 33 BtMG: The confiscation
Narcotics law | The § 33 BtMG: The confiscation
The § 33 BtMG regulates the rules on confiscation and extended confiscation of the proceeds of crime in relation to the content and limits of property. According to the StGB itself, confiscation is a measure and according to the StPO it is a secondary consequence. The purpose of confiscation of proceeds of crime is to seize property and thus to compensate for the unlawful displacement of property. Likewise, this provision ensures a certain degree of prevention, as it has the effect of ensuring that the offender's enrichment with crime proceeds does not continue in perpetuity. Thus, it cannot be that a disturbance of the legal order would condition an existing enrichment in the perpetrator.
The confiscation of proceeds of crime is possible in three different constellations.
The first option is confiscation from offenders or participants, the second is extended confiscation from offenders or participants, and the last option is confiscation from others. However, the confiscation of the value of the proceeds of the crime is also possible.
Section 34 of the BtMG: Supervision of conduct
Lawyer for BTM | The § 34 BtMG: The leadership supervision
In the context of offenses involving the Narcotics Act, it is possible for the court to order supervision of conduct. This is possible in the case of offenses against § 29 III, § 29a, § 30 and § 30a. This provision refers to Section 68 I of the Criminal Code. The supervision of conduct itself is a measure of improvement and safeguarding. In concrete cases, dangerous or endangered offenders are to be supported and monitored in their conduct of life over critical periods of time in order to protect them from further criminal acts and to deter them from committing such acts. This must therefore also be distinguished from probation assistance.
In this respect, supervision has a dual function. It is intended to be a possible help and support for the convicted person so that he or she can resocialize and, on the other hand, it protects the general public from new crimes. Supervision can be ordered by the court in a specific case or by law. The prerequisite for supervision is that a prison sentence of at least six months has been forfeited and that the offender will commit further crimes.
The entire German narcotics law is very complex in its diversity. The aim of this is the aforementioned protection of the population. In addition, there are regulations on the legal and illegal use of narcotics, which is punishable by law. If you are accused of an offense under the narcotics law, a professional assessment by a lawyer for BTM is absolutely necessary. Only through this, in case of doubt, a worse outcome can be prevented. Therefore, do not hesitate. With our broad and wide-ranging expertise, we are the right contact partner for all your concerns and your criminal relevant case!