Term and definition of drug-related offenses
Drug-related offenses are criminal offenses connected to the unlawful handling of narcotics. In particular, they include the manufacture, trade, import, export, acquisition, possession, and distribution of narcotics without the appropriate authorization. The legal basis for prosecuting drug-related offenses in Germany is primarily the Narcotics Act (BtMG).
Legal basis
Narcotics Act (BtMG)
The BtMG comprehensively regulates the handling of narcotics in Germany. It generally prohibits the unauthorized cultivation, manufacture, distribution, import, export, trade, acquisition, and possession of narcotics (§§ 29 et seq. BtMG). It distinguishes between various levels of severity, particularly between ‘normal,’ ‘less severe,’ and ‘serious’ cases.
Other relevant laws
In addition to the BtMG, other legal provisions are also relevant:
- Medicinal Products Act (AMG): In cases of misuse of prescription drugs.
- New Psychoactive Substances Act (NpSG): Regulations on so-called legal highs.
- Weapons and customs laws: In the case of cross-border drug offenses.
Typical forms of drug-related offenses
Possession of narcotics
The unauthorized possession of narcotics is probably the most common form of drug-related offense (§ 29 I BtMG). Possession exists when the suspected person has actual control over a narcotic and is at least able to influence its intended use.
Dealing in narcotics
Dealing includes any self-serving transfer of narcotics for profit (§ 29 I No. 1 BtMG). Initiating and brokering deals is also included. The term is to be interpreted broadly and encompasses both professional-scale dealing and small-scale actions.
Cultivation, manufacture, and import/export
- Cultivation: Cultivating plants that can be used to produce narcotics (e.g., cannabis).
- Manufacture: Any commercial or private production of narcotics by chemical or natural means.
- Import/Export: The cross-border movement of narcotics, which is generally considered particularly serious.
Distribution and handover
Other forms of handover, such as passing on without payment or delivering for consumption purposes, are also punishable (§ 29 I No. 6-7 BtMG).
Sentencing framework and sentencing guidelines
Basic offense under § 29 BtMG
Most drug-related offenses are punishable under § 29 BtMG with imprisonment of up to five years or a fine. Attempt and preparation are also punishable.
Qualified and serious cases
- Serious cases pursuant to § 29a, § 30, § 30a BtMG:
Imprisonment from one year up to 15 years is possible, for example in cases of commercial activity, organized crime, armed dealing, or particularly large quantities.
- Less serious cases:
Under certain circumstances, the punishment may be reduced (e.g., for a first offense, small quantity, non-profit dealing).
Small quantity
For possession of small quantities for personal use, the law allows for the possibility of waiving prosecution (§ 31a BtMG). The definition of ‘small quantity’ depends on the active ingredient content and varies between federal states.
Attempt, preparation, and participation
Attempt
Drug-related offenses are generally already punishable in the attempt (§ 29 II BtMG). Attempt occurs when the person, according to their intent, directly begins to commit the act, but it is not completed.
Preparation
Even preparing certain serious offenses may be punishable in its own right (§ 30 II BtMG), for example by obtaining raw materials for the manufacture of narcotics.
Forms of participation
Co-perpetration, incitement, and aiding in a drug-related offense are prosecuted in accordance with general criminal law.
Procedural particularities in drug-related offenses
Investigative powers
Investigations into drug-related offenses often allow for more far-reaching measures. These include:
- Telecommunications surveillance
- Use of undercover investigators
- Surveillance and searches
The legislature justifies these interventions by the particular dangers posed by drug crime.
Crown witness regulation (§ 31 BtMG)
If the accused person provides information to assist in the investigation, the penalty may be reduced or prosecution can be dropped entirely. The so-called crown witness regulation applies especially when leads on backers or larger structures are provided.
Significance in the international context
Since the manufacture, trade, and consumption of drugs often take place across borders, numerous international agreements apply. The most important are:
- Single Convention on Narcotic Drugs (1961)
- Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988)
Germany implements these through corresponding national legislation.
Distinctions and related offenses
Drug-related offenses are to be distinguished from:
- Regulatory offenses, for example, violations of the law regulating new psychoactive substances.
- Pharmaceutical crimes, which fall outside the BtMG, for example in the unauthorized sale of prescription drugs.
- Alcohol-related offenses, which generally do not fall under the BtMG and are regulated separately.
Consequences and other effects
Entry in the criminal record
Convictions for violations of the BtMG are usually entered into the police clearance certificate and can have far-reaching consequences for personal and professional development.
Driver’s license-related consequences
Drug use can lead to the revocation of the driver’s license. Mere possession may already raise doubts about fitness to drive.
Seizure and confiscation
Narcotics and assets obtained from them are subject to confiscation. This applies to all items and profits associated with drug-related offenses.
Statistics and legal policy assessment
Drug-related offenses have constituted a significant proportion of the crime statistics for years. Combating drug-related crime is a key goal of state prevention. In addition to repressive measures, there are also numerous efforts aimed at prevention and harm reduction.
Literature and further regulations
- Narcotics Act (BtMG)
- Act on the Traffic of New Psychoactive Substances (NpSG)
- Medicinal Products Act (AMG)
- International UN Conventions on Narcotics
Drug-related offenses form a highly complex area of law, which is subject to continual development, both due to legal policy requirements and the advent of new psychotropic substances and international interconnections. Addressing this topic always requires consideration of the current legal situation and case law.
Frequently Asked Questions
When is a punishable offense of dealing in narcotics present?
Dealing in narcotics is a central element under the German Narcotics Act (BtMG). It is present whenever a person, alone or as part of a group, organizes, arranges, or promotes the purchase, sale, exchange, or any other transaction involving narcotics—regardless of whether an actual transaction occurs or a profit is made. For criminal liability, the serious intent to do such a transaction is sufficient, even if it ultimately fails or is abandoned, e.g., because the buyer does not receive drugs. Distinguishing this from mere acts of courtesy or aiding acquisition must be assessed on a case-by-case basis. Even advertising drugs or relaying contact details can, in certain circumstances, qualify as dealing if it concretely facilitates a drug transaction.
What penalties can first-time offenders expect in the area of drug-related offenses?
The criminal liability for first-time offenders depends especially on the type and quantity of the confiscated narcotic, the circumstances of the offense, and the degree of personal guilt. In the case of so-called ‘small quantities’ for personal use, prosecution can—depending on the federal state—be waived under § 29 section 5 BtMG. Otherwise, basic offenses are punishable by imprisonment of up to five years or a fine. For more serious violations (e.g., dealing, possession of weapons, commercial dealing), the law mandates higher minimum sentences and increased penalty threats up to 15 years’ imprisonment. Complete exemption from punishment is possible only in exceptional cases through diversion programs or suspended sentences, with particular regard to insight into wrongdoing and cooperative conduct. Participation in addiction therapy may also have a mitigating effect.
What are the differences between possession, acquisition, and dealing in narcotics?
Possession means actually having control over the narcotic, regardless of whether it belongs to the accused or not. Acquisition takes place when someone obtains narcotics by purchase, exchange, gift, or any other means; mere receipt is sufficient. Dealing encompasses all activities related to the distribution of narcotics and is defined most broadly, since even mere involvement in the supply or sales chain is enough. The legal distinction is significant because dealing—as opposed to possession or acquisition—is regularly punished more severely and rarely allows for the discontinuation of proceedings. Likewise, possessing for another person (‘possession as a servant’) is legally different from actual own possession.
How does cooperating with investigative measures (crown witness regulation) affect the penalty?
Anyone who actively contributes to solving the case under the so-called crown witness regulation may expect a reduction in penalty or even exemption from punishment under § 31 BtMG. The requirement is that the offender voluntarily and at an early stage provides essential information on suppliers, backers, transport routes, or the specific origin of the narcotics, thus preventing or solving further significant offenses. The granting of a reduced sentence is at the discretion of the court and depends on the scope, timing, and truthfulness of the statements. However, comprehensive legal protection of the crown witness, especially against retaliation, is not fully guaranteed—this must always be weighed.
Can drug-related offenses result in an entry in the police clearance certificate?
Yes, all convictions for drug-related offenses generally result in entry in the Central Criminal Register. They regularly appear in the police clearance certificate if the sentence is more than 90 daily units of a fine or more than three months of imprisonment. Even for lesser penalties, repeat offenses and juvenile sentences are listed. An entry in the police certificate can have significant professional law consequences, e.g., in public service, in work with children, or for permits to reside or travel. Deletion periods depend on the severity and nature of the imposed sentence and are usually five to ten years.
What role does the so-called ‘small quantity’ play in proceedings involving drug offenses?
Establishing a ‘small quantity’ is particularly significant for first offenders. It enables the public prosecutor to discontinue criminal proceedings under § 29 section 5 BtMG—often subject to conditions such as participation in counseling or performing community service. Specific thresholds for the ‘small quantity’ are defined differently, depending on the narcotic and federal state (e.g., usually 6 to 15 grams for cannabis). What counts is always the actual active ingredient content. Note that exceptions apply if there are concrete indications of endangering others, commercial activity, or weapons involved; in such cases, discontinuation is not an option even if a small quantity is present.
