Addictive Substances Act

from Wikipedia, the free encyclopedia

The Narcotic Substances Act (SMG), Federal Law on narcotic drugs, psychotropic substances and precursors , is an Austrian federal law , the transport and financial management of addictive substances (illegal drugs and psychotropic substances ) and precursors regulates. Together with the Youth Courts Act 1988 (JGG), the Media Act (MedienG), the Pornography Act (PornoG), the Prohibition Act 1947 (VerbotsG), the Weapons Act (WaffG), the Military Criminal Law (MilStG) and the Financial Criminal Law (FinStrG), it counts as ancillary criminal law .

structure

The drug law is divided into 6 main parts:

  1. Scope and definitions (§§ 1–4)
  2. Addictive substances (§§ 5–16)
  3. Traffic and management with precursor substances (§§ 17-22)
  4. Monitoring of traffic and behavior with addictive substances and precursor substances (§§ 23-26)
  5. Criminal law provisions and procedural regulations (§§ 27-44)
  6. Final, effective and transitional provisions (§§ 45 ff)

Terms

The drug law distinguishes between

  1. Addictive drugs ,
  2. psychotropic substances and
  3. Precursors ,

whereby the first two categories are summarized as addictive substances .

Addictive drugs

Narcotic drugs within the meaning of the SMG are substances and preparations that are designated as narcotic drugs in the 1961 Single Narcotics Convention as amended by the 1972 Protocol, such as cannabis , cocaine and opiates , as well as substances in Appendices I and II of the Convention on Psychotropic Substances from 1971, such as LSD , psilocybin , amphetamine and its derivatives ( MDMA ) and phencyclidine .

According to the principle of certainty of criminal law, all substances that are considered narcotic are listed in the Narcotics Ordinance. This is particularly important in cases with ecstasy , because substances are often sold under the name that are not subject to the SMG, such as caffeine or paracetamol . Without a more detailed determination of the substance, in some cases it is not easy to assess whether possession of a drug is a criminal offense.

The term used in the law Suchtgift as a translation for the English term "narcotic drug" is misleading and tendentious, since it also includes substances that are not toxic according to scientific evidence neither addictive. In contrast, alcohol and nicotine, despite their known addictive potential and their relatively high toxicity, are not addicts within the meaning of the law.

Psychotropic substances

Psychotropic substances are substances and preparations that are included in Annexes III and IV of the 1971 Psychotropic Convention, e.g. B. Barbiturates and Benzodiazepines . In the case of substances that are controlled by the Single Narcotics Convention (“narcotic drugs”), derivatives are also included . In contrast, the Psychotropic Convention 1971 only restricts the use of the substances listed in the appendices, but not their derivatives.

In Austrian drug law, this different handling of the two substance categories is implemented in the individual ordinances (narcotics ordinance and psychotropic ordinance). While isomers , salts of the isomers, salts, ethers and molecular compounds are also included in the control for narcotic drugs, this only applies to their salts in the case of psychotropic substances.

As with narcotic drugs, all substances considered psychotropic are listed in the Psychotropic Ordinance.

Precursors

Precursors are substances that are used in the production of narcotic drugs and psychotropic substances, they are listed in the appendix of EU regulations No. 3677/90 of December 13, 1990 and No. 3769/92 of December 21, 1992: z. B. ephedrine , safrole , acetic anhydride , acetone , sulfuric acid and hydrochloric acid . Many precursors also have legitimate industrial and residential uses and cannot be effectively controlled.

Most narcotic drugs, with the exception of cannabis or mushrooms, have to be processed with special chemicals. One of the goals of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (the so-called Vienna Convention of 1988 ) is to control the trade and use of such precursor substances, which is reflected in several EU regulations and an EU Directive that was implemented in Austria with the precursors regulation .

Criminal Law Provisions

The consumption of narcotic drugs is not a criminal offense. However, almost everything connected with it is punishable: acquisition, possession, placing on the market, import or export, production, transfer or provision.

Small, large and oversized quantities

The SMG does not differentiate between so-called soft and hard narcotic drugs, the threat of punishment is the same for all drugs. However, it differentiates between small, large and oversized quantities, with larger quantities generally being subject to stricter penalties. Exceptions are the acquisition and possession of narcotic drugs for personal use, which are perceived as a health policy and less as a criminal policy issue. As soft drugs, such as MDMA, cannabis and cocaine, are privileged insofar as they have larger limits.

Criminal proceedings for the acquisition and possession of small quantities of narcotic drugs must generally be suspended for a probationary period of two years in accordance with Sections 35 and 36 SMG. Similarly, the tracking can of offenses of the so-called acquisitive accordance with §§ 35 and 36, SMG, the committed by the accused due to its accustomed to addictive drugs and in connection with the procurement of a drug can be set, unless they are within the competence of a The jury or jury will fall.

Other forms of offense such as production, import, export and the surrender or procurement of a small amount of narcotic drugs are punished according to § 27 SMG. In the case of large quantities, stricter penalties apply to all drug offenses, with the exception of acquisition and possession for personal use (Section 28 SMG). Oversized is an amount that is at least 25 times the limit of the small amount . For offenses of this magnitude, there are particularly strict penalties aimed at cases of organized crime (Section 28 (4) (3) SMG).

In contrast to narcotic drugs, there is no excessive amount of psychotropic substances. Compared to narcotic drugs, these substances are subject to much milder penalties, which are the subject of Sections 30 and 31 SMG.

On the one hand, specific quantities are based on the principle of certainty of criminal law, on the other hand, a clear distinction between small and large quantities of addictive substances also offers procedural advantages by making it easier for the courts to exercise uniform jurisdiction. De facto , the limit quantities are also health and criminal policy control instruments with which the extent of the political ban on certain addictive substances is specified. For example, the limit for cannabis is far greater than for heroin .

The lower limits of the small amount of an addictive substance or psychotropic substance, based on the pure substance of the active ingredient, are defined in the Narcotics Limits Ordinance and Psychotropic Limits Ordinance . The establishment of limit quantities of narcotic drugs is the responsibility of the Ministry of Health and Justice; it must be approved by the main committee of the National Council. When determining suitable limit quantities, in accordance with Section 28 (6) of the SMG, the "suitability of the drugs, induce habituation and to a large extent a danger to the life or health of people, as well as the habituation behavior of addicts must be taken into account." The same applies to psychotropic substances in accordance with Section 31 (3) SMG, with the difference that the limit quantities do not have to be approved by the main committee of the National Council.

The limit quantities relate to the pure substance. Here are some limit quantities as of 2005:

Criminal provisions for narcotic drugs

Section 27 SMG

Anyone who violates the regulations is punished with a prison sentence of up to one year or a fine of up to 360 daily rates

  1. Acquires, possesses, produces, transports, imports, exports or offers, surrenders or procures to another person,
  2. Cultivates or grows opium poppy, coca or cannabis plants for the purpose of producing narcotic drugs
  3. offers, leaves, procures or cultivates mushrooms containing psilocin, psilotin or psilocybin to another person for the purpose of using narcotic drugs.

However, anyone who commits the offense solely for personal use is punished with imprisonment of up to six months or with a fine of up to 360 daily rates. Anyone who commits these offenses on a commercial basis is punishable by imprisonment of up to three years.

Whoever is punished with a prison sentence of up to three years

  1. enables a minor to use addictive substances through an offense pursuant to Paragraph 1, item 1 or 2 and is of legal age and more than two years older than the minor or
  2. commits such an act as a member of a criminal organization.

However, anyone who is used to addictive substances and commits a criminal offense under Paragraph 3 or Paragraph 4 No. 2 primarily in order to obtain addictive substances for their own use or the means to acquire them is only punishable by imprisonment of up to one year. (Federal Law Gazette I 2007/110)

Criminal proceedings according to § 27 SMG for offenses involving small amounts of narcotic drugs are the most common in practice. Convictions in accordance with Section 27 (1) are subject to information restrictions and therefore do not appear in the criminal record certificate . (Section 42 SMG)

The qualification by commercial activity contained in Section 27 (3) of the SMG is defined in Section 70 of the German Criminal Code . The concept of criminal organization is justified by Section 278 of the Criminal Code.

The legal policy principle of "therapy instead of punishment" is reflected in Section 27 (2) line 2 SMG: dependent offenders who finance their own addictive substance needs with low-level drug offenses (small dealers, etc.) are only punished according to paragraph 1 .

Section 28 SMG

  1. Anyone who, contrary to the existing regulations, purchases or owns a narcotic drug in large quantities (Paragraph 6) with the intent that it will be placed on the market is punished with imprisonment for up to three years.
  2. A prison sentence of up to five years is to be imposed on anyone who, in contravention of the existing regulations, produces, imports, exports or puts into circulation a large amount of narcotic poison (Paragraph 6).
  3. Anyone who commits the act described in Paragraph 2 on a commercial basis or as a member of a criminal organization shall be punished with imprisonment of one to ten years. However, anyone who is used to an addictive substance himself and commits the act primarily in order to obtain an addictive substance for his own use or the means to acquire it, is only permitted under Paragraph 2, provided that the circumstances indicate that habituation can be assumed to punish.
  4. A prison sentence of one to fifteen years is to be punished for anyone who has committed the act described in paragraph 2
    1. commits as a member of a criminal organization and has already been convicted of a criminal offense specified in Paragraph 2,
    2. as a member of an association of a larger number of people to commit such criminal acts or
    3. commits with relation to a narcotic substance, the amount of which is at least twenty-five times the limit amount (para. 6).
  5. the perpetrator of the offense referred to in paragraph 2 who is involved in the commissioning of such criminal acts in a group of a large number of people is to be punished with imprisonment of ten to twenty years or with life imprisonment.
  6. The Federal Minister of Labor, Health and Social Affairs, in agreement with the Federal Minister of Justice and with the consent of the Main Committee of the National Council, has to set the lower limit of a large amount for the individual narcotic drugs, based on the pure substance of the active substance, by ordinance (limit amount). In particular, the suitability of the addictive drugs to induce habituation and to a large extent a danger to the life or health of people must be taken into account, as well as the habituation behavior of addicts.

Section 28 of the SMG is aimed at organized drug crime . In the case of the offenses mentioned in Paragraph 1 and Paragraph 2, the amounts from individual acts are added up and a check is made to determine whether there is intent according to Section 5 Paragraph 1 StGB with regard to a large amount. (OGH June 22, 1999, 14 Os 62/99)

The acquisition and possession of even a large amount of narcotic drugs for personal use is only punishable under Section 27 (1) SMG. Small amounts of narcotic drugs acquired and possessed for personal use at different times are not to be added together (EvBl 1982/110, OGH May 11, 1994, 13 Os 20/94).

Section 28, Paragraph 4, Item 3 defines the oversized amount, which is at least twenty-five times the limit amount (Paragraph 6).

Penal provisions for psychotropic substances

Section 30 SMG

  1. Anyone who purchases, owns, produces, imports, exports or transfers or procures a psychotropic substance contrary to the existing regulations is punishable by imprisonment of up to six months or a fine of up to 360 daily rates.
  2. According to Paragraph 1, there is no punishment for anyone who has medicinal products that contain a psychotropic substance, unless they are in large quantities,
    1. acquires, owns, imports or exports or for their own use or for the needs of an animal
    2. leaves to another and does not take advantage of it.

Section 31 SMG

  1. Anyone who, contrary to the existing regulations, purchases or owns a psychotropic substance in large quantities (Paragraph 3) with the intent that it will be placed on the market is punished with imprisonment for up to two years.
  2. A prison sentence of up to five years is to be imposed on anyone who, contrary to the existing regulations, produces, imports, exports or puts into circulation a large amount of psychotropic substance (Paragraph 3).
  3. The Federal Minister of Labor, Health and Social Affairs, in agreement with the Federal Minister of Justice, has to set the lower limit of a large amount for the individual psychotropic substances, based on the pure substance of the active substance, by ordinance (limit amount). Section 28 (6) second sentence applies accordingly.

Penal provisions for precursor substances

Section 32 SMG

  1. Anyone who acquires or owns a precursor substance that he knows will be used in large quantities in the illegal production of an addictive substance (Sections 28 (6), 31 (3)) is subject to a prison sentence of up to two years punish.
  2. Anyone who creates, imports, exports or puts into circulation a precursor substance that he knows will be used in large quantities in the illegal production of an addictive substance (Sections 28 (6), 31 (3)) is with To punish imprisonment up to five years.

Resignation of the criminal proceedings

Criminal proceedings for the acquisition and possession of small quantities of addictive substances must generally be put aside by the public prosecutor's office for a probationary period of two years in accordance with Sections 35 and 36 SMG. The provisional deferment of the notification requires a statement from the district administrative authority as the health authority as to whether the person reported requires a health-related measure in accordance with Section 11 (2) SMG. Therefore, a complaint for possession of addictive substances is usually associated with a socio-medical or psychiatric examination. The public prosecutor's office may refrain from obtaining a statement from the district administrative authority if a person is reported solely because they have acquired or possessed small quantities of substances or preparations from the cannabis plant for their own use, and if there is no reason to believe that the person is requires a health-related measure. However, a statement must be obtained if a person was reported for this within the last five years prior to this notification.

If the person reported needs a health-related measure in accordance with Section 11 (2) SMG based on the assessment by a specialist who is familiar with addictive substance issues, the public prosecutor's office must make the provisional deferment of the complaint dependent on the person being reported - if he has a legal representative, with him Consent - agreed to undergo such a measure. Alternatively, the filing of the complaint can be made dependent on regular supervision by a probation officer (Section 37 SMG).

The withdrawal of the notification according to § 35 SMG is therefore usually associated with monitoring the state of health of the person reported. If, according to the assessment of the district administrative authority, the reported person persistently evades surveillance, the public prosecutor must be informed, which usually results in the initiation or continuation of criminal proceedings (Section 38 SMG).

Health-related measures in the event of substance abuse

In Section 39 of the SMG there are exceptional provisions in the event of the abuse of addictive substances in order not to excessively criminalize addicts, occasional consumers or pain patients. Thereafter, the execution of the sentence is postponed for up to two years if the convicted person undergoes addiction treatment . This legal and health policy principle is called therapy instead of punishment . In practice, however, this often amounts to therapy or punishment , because the suspension of punishment can be revoked if the convicted person breaks off the withdrawal or becomes criminal again (Section 39 (4) SMG).

Medical application

In contrast to narcotic drugs , psychotropic substances in the form of drugs or drug abuse are privileged because the acquisition, possession, import and export of a small amount are not punishable, as is the transfer of such drugs as long as the person making the transfer does not take advantage of it. These special provisions are intended to counteract the criminalization of numerous drug addicts and also not to endanger medical prescribing practice for the drugs in question. Analogous to this, exceptions for medical applications of drugs containing drugs that are considered to be less dangerous have recently been increasingly claimed.

Doctors who prescribe addictive drugs for the purposes of pain or substitution treatment de lege artis (based on the knowledge and experience of medical or veterinary science ) are exempt from criminal liability according to Section 8 SMG. However, it prohibits § 14 of the accompanying Suchtgift Regulation (SV) doctors explicitly narcotics in substance or medicinal products containing more than a narcotic, other than approved specialties as well as preparations of heroin, cannabis, coca leaves, ecgonine and the substances listed in Annex V to this Regulation to prescribe, whereby the prescribing practice for narcotic drugs is correspondingly narrowed. The abuse or use of narcotic drugs as a palliative therapeutic measure has recently been perceived by the criminal courts as a possible justification .

history

Drug law in Austria was essentially shaped by three international conventions: The Single Narcotics Convention 1961 as amended by the 1972 Protocol, the Convention on Psychotropic Substances 1971 ("Psychotropic Convention") and the United Nations Convention against the Illicit Traffic in Narcotic Drugs and psychotropic substances 1988 (“Vienna Convention”). Originally, the drug law 1951 (SGG) came into force in Austria, which was amended in 1971, 1978, 1980 and 1985. It was eventually superseded by the Addictive Substances Act 1998, which took into account the 1988 Convention.

The only drug convention in 1961

Article 36 para. 1 a) of the 1961 Single Narcotic Drugs Convention obliges the contracting parties to refrain from any cultivation, extraction, manufacture, extraction, preparation, possession, offering, sale, distribution, buying, selling or delivery - regardless of the conditions - Brokerage, dispatch - also in transit traffic -, transport, import and export of narcotic drugs ... to be punished appropriately, in particular with prison or other types of imprisonment . Paragraph b), however, leaves the Contracting Parties free to provide, either as an alternative to conviction or punishment or in addition to conviction and punishment, that such addicts should undergo treatment, education, follow-up treatment, rehabilitation and social reintegration in accordance with Article 38 (1) become . Austria has stated that it interprets this obligation of the contracting parties in such a way that it can also be fulfilled by creating administrative offenses that provide for appropriate punishment for the violations mentioned therein. The criminal prosecution of drug offenses in Austria is therefore not based exclusively on the Single Narcotics Convention, it is also a result of domestic political developments.

Psychotropic Convention 1971

The 1971 Psychotropic Convention includes substances and preparations that are used in medicine and can be misused but are not covered by the Single Convention on Narcotic Drugs, such as psychotropic drugs . According to Article 9, such drugs can only be prescribed by doctors. Possession, acquisition, import and export and the surrender "without taking advantage of it" of small quantities of psychotropic substances are exempt from punishment in accordance with Section 30 (2) SMG.

Vienna Convention 1988

The United Nations Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances in 1988 is shaped by the conviction that the illicit traffic (... of narcotic drugs ...) is an international criminal activity, the fight against which requires urgent attention and the highest priority . The aim of the agreement is to express the desire to eliminate the root causes of the problem of drug and psychotropic substance abuse, including the illicit demand for such substances and the huge profits from illicit traffic . Accordingly, the contracting parties undertake, among other things , to pursue the enforcement of legal provisions on the confiscation of profits from commercial drug-related offenses and the improvement of legal assistance in investigations and criminal prosecutions, in the sense of a largely repressive drug policy . The convention resulted in a new version of the Addictive Substances Act 1998 with simultaneous changes to numerous health and criminal laws.

Drug Policy Developments

Since 1980 drug addiction has been increasingly perceived as a health policy issue in Austria or, in some cases, tolerated to a socially justifiable extent, dealers, on the other hand, experience the full severity of criminal law and face long, unconditional prison sentences. In this context it is problematic that many dealers are addicts within the meaning of the law and that the distinction between criminal and “health offenses” cannot always be clearly made.

In practice, the SMG is the most important ancillary criminal law because it is responsible for around two thirds of all convictions in ancillary criminal law . According to a parliamentary response from the Federal Minister of Justice (1637 / AB XXII. GP), the number of convictions under the SMG rose steadily between 2000 (3,219) and 2003 (4,528). In 2004 there were over 38,000 pending criminal proceedings nationwide because of the SMG (2895 / AB XXII. GP).

According to the drug report 2005 of the Ministry of Health, there were 25,215 reports in 2004 according to the SMG (2003: 22,245), an increase of around 13% compared to the previous year. There was particularly large growth in advertisements for cannabis, and to a lesser extent in advertisements for cocaine and crack. The number of convictions under the SMG followed the previous trend and rose by around a quarter to 5,706 cases (2003: 4,532). The proportion of offenses committed under the SMG in all convictions has also risen to a new high (1995: 4.7%; 2004: 12.6%).

Legal relationships

The SMG comprises five ordinances and a proclamation by the Federal Minister for Labor, Health and Social Affairs. The drug and psychotropic ordinance regulates the legal use of addictive substances, including all plants, substances and preparations that are considered to be addictive or psychotropic substances. The corresponding limit quantity ordinances define the concept of a small amount , which differs depending on the substance and for which milder penalties apply. This is to avoid excessive criminalization of consumers or addicts. Officially, the principle of therapy instead of punishment applies , taking into account the individual situation of the offender. The announcement about therapy facilities for drug addicts is based on § 15 SMG.

  • Narcotics Ordinance (SV) Link
  • Psychotropic Ordinance (PV) Link
  • Precursors Ordinance (VorlV) Link
  • Narcotics Limits Ordinance (SGV)
  • Psychotropic Limit Quantity Ordinance (PGV)
  • Announcement about institutions and associations that offer care for individuals with regard to drug abuse

literature

  • Foregger / Litzka / Matzka: Narcotics Act . Manzscher short comment. 2nd edition, Manz Verlag, Vienna 1998. ISBN 3-214-03082-5
  • Doralt (Ed.): Code of Criminal Law . 24th edition, LexisNexis publishing house, Vienna 2005. ISBN 3-7007-3245-7
  • William B. McAllister: Drug Diplomacy in the Twentieth Century. An International History. Routledge, London 2000. ISBN 0-415-17990-4

Web links