Drug possession
Drug possession refers to the criminal offense of possession of illegal drugs without legitimation. In Germany and Switzerland, the basis is the provisions of the Narcotics Act (BtMG), which regulates the marketability of certain substances listed in the appendix to the law. In Austria , the marketability of drugs is regulated in the Narcotics Act. A criminal offense exists if a natural person possesses substances without fulfilling the prescribed requirements for possession ( Section 29 BtMG). This can be both the possession of non-marketable drugs such as heroin or cannabis , as well as the possession of narcotics that are conditionally marketable without a legitimation for this - for example, if the possession of prescription narcotics without a prescription or possession of substances that only doctors are allowed to have for outpatient administration. Conversely, there is no violation of the Narcotics Act if a natural person owns a non-marketable narcotic and has received approval from the health department - for example laboratory facilities that are commissioned to examine a drug for its active ingredients ( Section 3 BtMG) .
Criminal liability
Small amount
The penalties imposed for illegal drug possession vary depending on the substance, the circumstances, the amount, the crime scene and the assessment of an incident by the responsible judge and prosecutor. In almost all European countries, possession of small quantities for personal use usually leads to charges, but not to charges. Since the principle of legality applies in Germany , the police are obliged to report any known violation of the Narcotics Act, whereby the public prosecutor has the option of discontinuing proceedings due to insignificance ( Section 153 StPO ) if the amount involved is only small ( Section 29 (5) BtMG). As a guideline for a small amount of cannabis, an upper limit of six grams applies in most German federal states. In Lower Saxony , Bremen , Hamburg and Berlin there is an upper limit of 15 grams of cannabis. In North Rhine-Westphalia and Rhineland-Palatinate , the upper limit is 10 grams of cannabis. In Baden-Württemberg , a small amount corresponds to three consumption units, although there is no regulation that defines the size of a consumption unit. In practice, the amount of three consumption units ranges from less than a gram to amounts that are not tolerated as small amounts in any other federal state, which is why Baden-Württemberg's practice is often criticized as an arbitrary legal regulation.
In the case of possession of other illegal drugs, no charge will usually be brought if there is only a small amount of possession for personal use. However, the volume of a small amount is considered to be much lower. In the case of narcotics in tablet form, one tablet is generally regarded as the upper limit for personal use. If there is possession of substances, the possession of which is restricted by the Narcotics Act, but which hardly play a role in the illegal drug market, judges and public prosecutors are usually more generous.
The limit values for the small amount in Bavaria are 0.15 g of amphetamine base for speed, 0.3 g of cocaine hydrochloride for cocaine and 0.03 g of heroin hydrochloride for heroin (as of August 2014).
The upper limits for small quantities are intended solely as guidelines for assessing offenses. If there are other indications for or against the fact that possession of drugs is for personal use, a public prosecutor or judge may deviate from the guideline values. There is also no entitlement to the termination of proceedings in the event of drug possession below the specified reference amount, nor is there an obligation to have to sanction offenses due to drug possession above these upper limits. If a public prosecutor is not prepared to discontinue proceedings, the judge has the opportunity to do so at the main hearing. Offenses related to drug possession in small quantities are generally not stopped if they are particularly severe (e.g. if drugs could get into the hands of small children) or if they are suitable to arouse a public nuisance (e.g. previous one Drug use in the school yard, in correctional facilities or at mass events). If the accused are people with a special social responsibility (e.g. teachers, social workers, police officers, doctors), the willingness of the public prosecutors and judges to unconditionally discontinue proceedings is less. In Austria an indictment can also be waived if the possession of drugs is only for personal use. The assessment of whether a drug is owned for personal use or an attempted trade is based on other factors than just the amount alone. As a result, there are isolated cases in which the proceedings have been unconditionally discontinued even after possession of larger quantities . In Switzerland, on the other hand, drug possession was not a criminal offense until a few years ago if the motivation for drug possession did not serve to use it as an intoxicant. In return, drug consumption is a criminal offense. Due to this legal situation, cannabis products were sold in some cantons as sachets or bath products without the police or public prosecutor intervening.
Normal amount
In Germany, violations of the Narcotics Act not only differentiate between small and non-small amounts, but also between normal and large amounts. A drug possession of a normal amount of cannabis exists if the active ingredient content of the confiscated narcotic drugs does not exceed 7.5 grams of pure active ingredient. Depending on the concentration of the active ingredient, the amounts involved can vary greatly.
For drug possession in normal amounts, penalties of up to 90 daily rates are provided, whereby drug possession in this context is still classified as an offense ( Section 12 of the German Criminal Code ) and not as a crime . In the case of offenses, too, public prosecutors and judges generally have the option of discontinuing proceedings, whereby a discontinuation is usually associated with conditions (social hours, monetary donations, therapy or social training measures) ( Section 153a of the Code of Criminal Procedure applies if the requirements of Section 29a or Section 30 of the BtMG are met are not fulfilled). In practice, whether a public prosecutor is willing to discontinue proceedings against conditions often depends on the accused's own initiative.
Not a small amount
A prison sentence of at least one year is provided for possession of a significant amount of drugs ( Section 29a (1) sentence 2 BtMG ), whereby the penalty is not based on the amount of narcotic drug possession , but on other circumstances (commercial or non-commercial Trade, organization in gangs, possession of weapons). The case law determines when a significant amount is reached. This is different for each drug (examples: cannabis: 7.5 g THC ; cocaine : 5.0 g cocaine hydrochloride ; heroin: 1.5 g diacetylmorphine ). The Narcotics Act, however, leaves an option open to impose a sentence of between 90 days and two years in less serious cases. Since the minimum penalty for possession of drugs in large quantities through this back door is only 90 days, there is also the possibility of suspending proceedings against conditions in individual cases, even in the case of drug possession in large quantities, whereby the accused is not considered a criminal record ( § 29a / § 30 BtMG) .
International comparison
In almost every country in the world, possession of narcotic drugs is prohibited and can lead to prison terms. In countries like Malaysia or Singapore , possession of narcotic drugs can result in the death penalty . Almost all countries base the penalty for drug possession on the amount of a substance.
See also
Individual evidence
- ↑ Preliminary guidelines for the application of § 31a Paragraph 1 BtMG according to RdErl. Of the Ministry of Justice - 4630 - III A. 7 "IMA" - and the Ministry of the Interior - IV D l - 6507.1 of May 13, 1994 - JMBl. NW P. 133 - ( Memento from April 16, 2009 in the Internet Archive ) In: Justizportal Nordrhein-Westfalen . The Justice of the State of North Rhine-Westphalia, May 13, 1994, accessed on April 27, 2019
- ↑ For personal use only: Land allows ten grams of cannabis. Rhein-Zeitung, January 26, 2012, accessed on March 11, 2012 .
