Concept and Definition of Drug Addiction
Under the term drug addiction (also referred to as drug dependence in a narrower sense), German law understands addiction to illegal narcotics. The definition and legal handling of the topic are derived in particular from the Narcotics Act (BtMG). Drug addiction is not a separate criminal offense but is mainly significant in sentencing, the enforcement of sentences, and in preventive detention. In medical terms, it is a chronic and recurring disease, characterized by the continued misuse of intoxicating substances, which can have significant social as well as health consequences.
Legal Foundations of Drug Addiction
Narcotics Act (BtMG)
Das Narcotics Act forms the central legal basis for all regulations regarding drug addiction in Germany. The BtMG distinguishes between possession, acquisition, trade, distribution, manufacture, and consumption of narcotics. While mere addiction itself is not punishable, actions connected to illegal narcotics are comprehensively regulated.
Non-criminalization of Consumption
The consumption of narcotics itself is fundamentally not punishable in Germany (cf. § 29 BtMG). However, acquisition, possession, and other actions related to narcotics are punishable. Drug addiction as a condition or illness is therefore not criminalized, but the typical associated actions are.
Aggravating and mitigating aspects of addiction
Within sentencing, addiction disorders can be considered as both aggravating and mitigating factors. The degree of culpability, the ability to control one’s actions, and the presence of willingness for therapy and treatment are key factors in the legal assessment.
Preventive detention according to § 64 StGB
For persons who become criminally conspicuous due to their addiction, the Criminal Code (§ 64 StGB) provides for placement in a detoxification facility as a measure of rehabilitation and security. The requirement is that the unlawful act is connected to drug addiction and that there is a promising prospect for successful withdrawal treatment.
Requirements for placement
- Addiction-related commission of the offense: The triggering offense must be related to drug addiction.
- Treatment prognosis: There must be a prospect that the treatment will reduce the risk of further offenses.
Process of placement
Placement in a detoxification facility is usually carried out in parallel with or following a prison sentence. The competent court decides on the duration and termination of the measure.
Impacts on sentencing (§§ 20, 21 StGB)
Addiction can significantly reduce the ability to recognize wrongdoing or to act accordingly. According to §§ 20, 21 StGB, this may establish diminished criminal responsibility, rarely even criminal incapacity. This leads to adjustments in sentencing or, possibly, to dispensing with punishment.
Drug addiction in the context of procedural decisions
Termination of proceedings for minor culpability (§ 31a BtMG)
According to § 31a BtMG, if there is minor culpability and possession of small amounts of narcotics, the investigation may be discontinued if there is no public interest in prosecution. This often applies to addicted persons when therapeutic measures have already been initiated.
Diversion and therapeutic conditions
Public prosecutors and courts can, under certain conditions, refrain from prosecution if the affected person, for example, undertakes therapy or attends drug counseling. Such conditions are expressly intended to promote sustainable withdrawal and social reintegration.
Social law and regulatory aspects of drug addiction
Effects on driver’s license according to § 3 StVG and FeV
Drug addiction constitutes a lack of fitness in terms of driving license law. According to § 3 StVG and the regulations of the Driving License Ordinance (FeV), if an addiction disorder is identified, the license is generally revoked, since the fitness to operate motor vehicles is not deemed to exist.
Placement and coercive measures under the PsychKG
In cases of acute danger to self or others as a result of drug addiction, state law provisions on public law placement may apply (Mental Health Acts – PsychKG). Coercive measures, however, are permissible only under strict conditions and in cases of acute danger.
Drug addiction in prison
Addicted persons in prison receive specific offers for withdrawal and resocialization. The aim is to reduce the risk of relapse and to promote social reintegration. Participation in withdrawal and therapy measures can influence both preventive detention and regular sentence planning.
Significance of drug addiction in relation to other areas of law
Child custody and family law
Drug addiction of a parent can be considered in questions of custody or visitation rights. Family courts can take measures for the welfare of the child (e.g., conditions, partial withdrawal, or exclusion of visitation) to protect the child’s well-being.
Implications under employment law
Drug addiction can have significant effects in employment relationships. In certain occupations, particularly in the public sector or passenger transport, there is a special duty of loyalty and responsibility. Proof of addiction can lead to employer action up to dismissal, though the social protection of addicted persons is particularly safeguarded under § 1 KSchG and SGB IX within the framework of workplace reintegration management.
International regulations and European legal aspects
At the international and European level, there are numerous agreements and regulations governing the handling of addiction and narcotics, such as the Single Convention on Narcotic Drugs of 1961. In the member states of the European Union, there is also an obligation to implement effective measures against the illegal trafficking of narcotics and to promote prevention and therapy programs.
Summary
The legal treatment of drug addiction in Germany is comprehensively regulated and combines elements of criminal law, preventive detention, regulatory law, social law, family law, and employment law. The aim is to strike a balanced relationship between repressive law enforcement, therapeutic intervention, and social reintegration. The requirements for judicial and administrative measures must always be assessed on a case-by-case basis and with consideration for the principle of proportionality.
Frequently Asked Questions
Can possession of small amounts of drugs remain unpunished?
Whether possession of small amounts of drugs goes unpunished in Germany depends on the type of narcotic, the federal state, and the exact circumstances of the individual case. The Narcotics Act (BtMG) generally prohibits possession of any amount of narcotics. However, § 31a BtMG allows for prosecution to be dispensed with for first-time offenders and for possession of small amounts for personal use. The definition of “small amount” varies considerably depending on the substance and federal state, and there are corresponding administrative guidelines. For example, the limit for cannabis is 6 grams of THC in some federal states, in others up to 15 grams. It is also decisive that there is no danger to others and that there is no further criminal interest. Nevertheless, such a decision to discontinue proceedings does not constitute legality in the sense of complete immunity from punishment but merely the suspension or termination of the procedure in the specific case. The police will generally investigate possession; an entry in the investigation register may follow, which can later be relevant, for example, for driving license matters.
What are the criminal consequences of passing on or selling drugs?
Passing on or selling drugs is punishable under § 29 BtMG and is prosecuted much more harshly than mere possession. Anyone who distributes narcotics, trades in them, cultivates, manufactures, or imports them, risks significant prison sentences. For so-called not insignificant quantities, the law even stipulates minimum sentences of one year, which can apply to even seemingly small quantities of highly concentrated drugs. Commercial activity or distribution to minors leads to even more severe penalties (§ 30, § 30a BtMG), so in such cases long prison sentences are to be expected. Even conduct involving only the planning or arranging of transactions, without an actual handover, constitutes drug trafficking.
Is therapy possible as an alternative to punishment?
The Narcotics Act allows, under certain circumstances, for therapy instead of punishment. According to § 35 BtMG, the convicted person may apply for the postponement of an imposed prison sentence in favor of therapy if the sentence does not exceed the minimum of two years and if there is an addiction disorder. Approval requires a prospect of successful addiction treatment and that the offense is connected to the addiction. After a successful completion of inpatient treatment and subsequent aftercare, the court may dispense with further enforcement of the penalty or suspend the remaining sentence on probation. However, if therapy is discontinued or not started without good cause, the sentence must be served as usual.
What effect does a conviction have on a driver’s license?
If convicted of an offense under the BtMG, the individual faces significant consequences regarding their driver’s license. Even mere possession or use of narcotics in connection with road use may lead to an evaluation of driving suitability by the licensing authority. There is a broad obligation for police and courts to report such events. The authority may require the submission of a medical-psychological assessment (MPU) or revoke the license if regular consumption is established, even without relation to vehicle use, as drug users are deemed unfit to operate motor vehicles. In addition, convictions are recorded in the Central Criminal Register and negatively affect future applications for reissuance.
Can drug users be compelled to undergo a blood test?
In connection with criminal investigations or suspicion of drug use while driving, the police may order a blood sample. According to § 81a StPO, this is permissible even against the accused’s will if there is specific suspicion of a drug-related offense. Usually, an initial suspicion is sufficient, such as behavioral symptoms, discovery of drugs, or confessions. In traffic matters, since 2017, if there is suspicion of driving under the influence of narcotics, no judicial order is required; the police can initiate the procedure on their own.
What entries follow a conviction for a drug offense in the criminal record?
After a final conviction for an offense under the BtMG, there is generally an entry in the Central Criminal Register. In the police clearance certificate, prison sentences of three months or more, fines of more than ninety daily rates, as well as relevant repeat offenses, are recorded. First-time offenders with small fines may, under certain conditions, avoid registration. These entries can significantly affect job applications, particularly in sensitive professions (health care, public service), as well as commercial licenses and residence permits for foreigners. Entries are deleted at the earliest after three to five years and, in some cases, not until after ten years.
What should be considered for minors and drug offenses?
In juvenile criminal law (§ 1 JGG), educational measures and assistance are the priority. Offenses under the BtMG involving minors and young adults are primarily dealt with according to juvenile law. Social-pedagogical measures, instructions, supervision orders, or anti-drug course orders may be imposed. Imprisonment is only a last resort and is usually reserved for serious or repeated offenses. However, even proceedings under juvenile criminal law can have consequences, such as for driving license matters or for transition to adult criminal law, where previous convictions can result in harsher sentencing.
