Amount (narcotics law)

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The German Narcotics Act knows three different quantity terms . Based on the division into different amount categories - small amount of (also micro amount ), the normal quantity and not small amount - a dish judged the severity of a narcotic offense and correspondingly the associated penalty. The Austrian Narcotics Act contains comparable regulations .

Quantity terms of the Narcotics Act (BtMG)

Small amount

The small amount comprises a maximum of three consumption units. The unit of consumption is to be understood as the amount of anesthetic that is required to achieve a state of intoxication in occasional users. Because an active ingredient report is expensive, in practice it is based on the gross amount. A small amount means the (gross) amount of an illegal drug up to which, according to § 29 Paragraph 5, § 31a BtMG, an inevitable criminal prosecution can be waived. It is a mistake to assume that there is fundamental impunity in this respect. The legislature assumes an existing offense according to § 29 BtMG. Charges may or may not be brought. Refraining from prosecution also requires that the narcotics were intended for personal consumption and that there is no public interest in prosecution. There is a public interest in criminal prosecution if personal consumption is associated with a third-party risk . Endangerment of others is to be assumed if the act gives cause for imitation, the act was committed in schools, barracks, youth homes or prisons or the perpetrator is active there as an educator, trainer or the like. Surrendering just one consumption unit from an adult (adult in the criminal sense, i.e. at least 21 years old, cf. § 1 JGG ) to a minor is a crime according to § 29a, Paragraph 1, No. 1 BtMG.

Normal amount

If the small amount is exceeded, there is initially a normal or simple amount, which is punishable under § 29 Paragraph 1 (completion), Paragraph 2 (attempt) or Paragraph 4 (negligence). This represents an amount that is above the gross amount (small amount within the meaning of § 31a BtMG), but still below the “not small amount” (within the meaning of § 29a BtMG). The presence of the “not small amount” is determined according to the case law of the BGH on the basis of the net active ingredient content of the gross amount of the respective narcotic. In most federal states - for cannabis - the "small amount" ( § 31a BtMG) ends at 6 g gross weight. The “not small amount” ( Section 29a (2) BtMG) starts with 7.5 g of pure active ingredient ( THC ), which for cannabis with an active ingredient content of 10% would correspond to a gross amount of 75 g. In this calculation example, a gross amount of more than 6 g but less than 75 g would correspond to a “normal amount”.

Not a small amount

Pursuant to Section 29a of the BtMG, there is a threat of imprisonment of no less than one year for handling a significant amount . This increases to 2 years in the case of the import of narcotics in no small amount . Anyone who, as a member of a gang or with weapons, trades in narcotic drugs in large quantities or imports them, is punished with imprisonment for no less than 5 years ( Section 30a BtMG).

It depends on the prohibited substance , i.e. not on the gross amount of the respective dosage form . According to the decision of the Federal Court of Justice (BGH), there is a significant amount of cannabis if the cannabis product in question contains at least 7.5 g of tetrahydrocannabinol (THC). In 2008, the BGH set the limit value for a not small amount of methamphetamine (“crystal meth”) at 5 g metamphetamine base or approx. 6.2 g metamphetamine hydrochloride.

On January 14, 2015, the German Federal Supreme Court ruled on the not insignificant amount of various synthetic cannabinoids . The limit of the not small amount was set at two grams for the cannabinoids JWH-018 and CP 47,497-C8 homologs. The active ingredients JWH-073 and CP 47,497 reach the limit value at six grams.

Small amount in cannabis products

In 1994 the Federal Constitutional Court ruled that the ban on cannabis does not violate the constitution as long as there is no criminal prosecution for small amounts. In the following years the limit was set very differently by the various federal states or not at all. Uniform federal regulations for the application of § 31a BtMG, as intended by the Federal Constitutional Court, are not in force; rather, there are slightly different regulations in the federal states, which ensure uniform practice in the respective federal state. (As of March 2008)

A study by the Max Planck Institute for Foreign and International Criminal Law came to the conclusion in 2006 that the small amount was handled very differently in the various federal states, and criticized this legal uncertainty, especially with regard to the Federal Constitutional Court decision .

In the course of 2006 and 2007, several federal states changed their limit so that there were only three limit values ​​in the summer of 2007: Berlin, Bremen and Lower Saxony set the “small amount” at 15 g, Mecklenburg-Western Pomerania at 5 g. Baden-Württemberg regards three “consumption units” as a small amount. 2 g were often considered to be the unit of consumption, so that 6 g should apply as the limit. The other federal states had also set 6 g as a small amount.

state Mass
(in grams)
Baden-Württemberg 6th
Bavaria 6th
Berlin 15th
Brandenburg 6th
Bremen 6th
Hamburg 6th
Hesse 6th
Mecklenburg-Western Pomerania 6th
Lower Saxony 6th
North Rhine-Westphalia 10
Rhineland-Palatinate 10
Saarland 6th
Saxony 6th
Saxony-Anhalt 6th
Schleswig-Holstein 6th
Thuringia 10

It should be noted that the specifications of the individual federal states were guidelines, from which prosecutors and judges could deviate in individual cases. There is no right to abstain from prosecution for drug possession in small quantities. If there is no prosecution, this does not automatically mean that sanctions will also be waived. Attorneys have to § 153a CCP the possibility of a case against supports (z. B. hours, money or support advisory in a suitable device) to set . This is used, for example, for delinquents who have been repeatedly reported for possession of drugs in small quantities or slightly more than a small quantity. However, special circumstances in connection with the offense can also lead to criminal prosecution for drug possession in small quantities not being waived or only under certain conditions.

In June 2018, the justice ministers of the German federal states decided to set a uniform upper limit for personal cannabis consumption. Criminal proceedings could be discontinued for possession of up to six grams. Berlin's Justice Senator Dirk Behrendt announced that the upper limit in Berlin would continue to be 15 grams of cannabis.

Small amounts of other narcotics

The federal states of Bremen , Hamburg , Hesse , Lower Saxony and Schleswig-Holstein have also expressly regulated rules for discontinuing the procedure for other narcotic drugs. They provide for the possibility of terminating the procedure if 1 g of heroin and 1 g of cocaine (Schleswig-Holstein 3 g) are in possession . For amphetamines , Bremen provide a setting option for 1.6 g, Hesse for 2.5 g and Schleswig-Holstein for 3 g. In the case of ecstasy , this is common in Bremen with 3 tablets, in Hamburg with fewer than 10 and Hesse with fewer than 20 tablets.

Web links

Individual evidence

  1. ^ Jörn Patzak , Wolfgang Bohnen: Narcotics law. 1st edition. Verlag CH Beck, ISBN 978-3-406-58639-2 , Chapter 2, marginal note 122.
  2. ^ BGH judgment of July 18, 1984, BGHSt 33, 8.
  3. ↑ Federal Supreme Court lowers limit value for significant amounts of metamfetamine , press release No. 228/2008 of the press office of the Federal Supreme Court, December 9, 2008 (on the judgment Az. 2 StR 86/08)
  4. ↑ BGH, judgment of January 14, 2015 - 1 StR 302/13
  5. ↑ Juris.de: Legal Highs - limit values ​​for synthetic cannabinoids set, accessed on January 24, 2015
  6. ↑ Study by the Max Planck Institute for Criminal Law on the small amount from 2006 ( memento of the original from September 27, 2007 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.mpicc.de
  7. ↑ Federal state comparison of the guidelines for the application of § 31a BtMG. German Hemp Association, July 11, 2011, accessed on March 10, 2012 .
  8. ^ Communication from the Senate: Current developments in drug policy in Bremen. (No longer available online.) Bremen Citizenship, September 9, 2014, formerly in the original ; Retrieved September 17, 2014 .  ( Page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice.@1@ 2Template: Toter Link / www.bremische-buergerschaft.de  
  9. ↑ Uniform maximum cannabis limit required. Rheinische Post, November 11, 2012, accessed on November 11, 2012 .
  10. ↑ Application of Section 31a, Paragraph 1 of the BtMG and processing of investigative proceedings in criminal cases against drug users. December 7, 2012, accessed April 30, 2015 .
  11. ↑ 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 S. 133. In: Justice portal North Rhine-Westphalia. The Justice of the State of North Rhine-Westphalia, May 13, 1994, accessed on March 17, 2015 .
  12. ↑ For personal use only: Land allows ten grams of cannabis. Rhein-Zeitung, January 26, 2012, accessed on March 10, 2012 .
  13. ↑ Media information 02/2017 - Amount regulation for cannabis changed. Thuringian Ministry for Migration, Justice and Consumer Protection, January 9, 2017, accessed on January 17, 2017 .
  14. ↑ Rainer Kellers: Six grams: Justice ministers vote for cannabis upper limit. June 7, 2018, accessed April 13, 2020 .
  15. ↑ Personal use for smoking weed. Uniform cannabis upper limit - not with Berlin. In: Der Tagesspiegel . June 7, 2018, accessed April 13, 2020 .
  16. ^ Jörn Patzak, Wolfgang Bohnen: Narcotics law. 1st edition. Verlag CH Beck, ISBN 978-3-406-58639-2 , Chapter 2, marginal note 124.

Remarks

  1. ↑ Berlin: In individual cases up to 15 grams.