Term and Definition of Drugs
In a legal context, the term “drugs” refers to substances that, due to their pharmacological effects, influence the central nervous system, cause changes in perception, consciousness, or mood, and whose use regularly involves risks to human health. Depending on their potential for dependence and risk of abuse, drugs are classified and regulated differently by various laws and international agreements. While in everyday language “drugs” primarily refers to illegal narcotics, the legal term encompasses a much broader group of substances, including prescription medications and psychotropic substances.
Legal Basis and Regulations
International Legal Basis
Multinational conventions play a major role in dealing with drugs:
Single Convention on Narcotic Drugs
The 1961 United Nations Single Convention serves as the central agreement for the control of international production, distribution and use of narcotic drugs. It lists various substances in the so-called list of narcotic drugs, whose handling is generally subject to approval or is prohibited.
Convention on Psychotropic Substances of 1971
The 1971 convention supplements the Single Convention by regulating relevant psychotropic substances such as hallucinogens, amphetamines, and benzodiazepines. It distinguishes between several schedules with different levels of regulation.
UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Vienna Convention 1988)
This convention tightens regulations for combating illicit trade, particularly regarding international cooperation in extradition, confiscation, and investigation.
National Regulations (Example: Germany)
Narcotics Act (BtMG)
The BtMG is the central law governing the handling of narcotics. This includes all substances listed in Schedules I-III to the Act. The BtMG distinguishes between prohibited substances, marketable narcotics under stricter control, as well as marketable and prescribable drugs. Handling (acquisition, trade, possession, manufacture, distribution, etc.) of narcotics is generally prohibited unless an exemption is granted by the competent authority (e.g., Federal Opium Agency).
Schedule I: Non-marketable narcotics
Example: Heroin, LSD – No medical use, possession and trade generally punishable by law.
Schedule II: Marketable, but non-prescribable narcotics
Example: Raw opium, coca leaves – May be processed or traded by authorized companies, but cannot be prescribed to end consumers.
Schedule III: Marketable and prescribable narcotics
Example: Morphine, methadone – Can be prescribed medically using special narcotic prescriptions.
Medicinal Products Act (AMG)
The AMG regulates all medicines requiring approval, including psychoactive drugs. It stipulates the conditions under which drugs may be used, manufactured, and sold as pharmaceuticals.
New Psychoactive Substances Act (NpSG)
This law regulates the handling of so-called “legal highs” and new synthetic drugs that were not previously covered by the BtMG.
Fundamental Rights and Constitutional Law
The regulations concerning drugs affect fundamental rights such as general freedom of action (Art. 2(1) GG), the right to physical integrity (Art. 2(2) GG), as well as the protection of public health and youth. Criminal provisions are examined in light of the principle of proportionality.
Differentiation: Legal and Illegal Drugs
Legal Drugs
These include substances such as alcohol, nicotine, and psychoactive medications, which, due to their societal establishment and special legal status, do not or only partially fall under the BtMG. Their purchase and consumption are often subject to age restrictions and additional regulations (Youth Protection Act, Tobacco Products Act).
Illegal Drugs
Substances whose possession, acquisition, manufacture, or trade are generally prohibited under the BtMG are referred to as illegal drugs. Examples include cannabis, cocaine, heroin, or amphetamines. The handling of these drugs is generally associated with criminal sanctions.
Criminal Law Aspects Related to Drugs
Criminal Offenses
The BtMG provides for various criminal offenses:
- Unauthorized possession of narcotics (§ 29 I No. 3 BtMG)
- Unauthorized trading, cultivation, or manufacture
- Unauthorized import or export
- Dealing in substantial quantities (aggravating penalty: custody of at least one year according to § 29a and § 30 BtMG)
In less serious cases, proceedings may sometimes be discontinued under § 31a BtMG, such as when small amounts are acquired for personal use.
Special Features of Criminal Procedure
In cases of suspected drug offenses, measures such as searches, seizures, or telecommunications surveillance may be considered. Seized drugs are usually destroyed.
Regulatory Law Aspects
In addition to criminal law, the Road Traffic Act (StVG) and the Driving License Regulation (FeV) apply in cases of drug use while driving; violations can result in license revocation, fines, and medical-psychological assessments.
Special Features in Drug Law for Certain Substances
Cannabis
The handling of cannabis (marijuana, hashish) is generally prohibited in Germany, but has been permitted for medical purposes under certain conditions since 2017.
Methadone and Substitution
For the treatment of individuals dependent on opioids, the controlled administration of methadone under official supervision is legally permitted according to the requirements of the BtMG and the Narcotic Drugs Prescription Ordinance (BtMVV).
Misuse of Medicinal Products
The misuse of prescription drugs (e.g., benzodiazepines, stimulants) is also covered by the legal provisions mentioned above. The distinction between legal use and abusive – and thus possibly criminal – use always requires nuanced consideration.
Measures for Addiction Prevention and Rehabilitation
The Social Code Book (SGB V), the Child and Youth Welfare Act (SGB VIII), as well as regional state laws and programs provide for prevention, counseling, therapy, and rehabilitation services for individuals suffering from addiction. The promotion of youth protection and education about the risks of drug abuse are also legally mandated.
Significance of the term ‘drugs’ in Administrative and Social Law
Authorities are required by the relevant laws to prevent abuse and unauthorized trade. In social law, drug misuse can affect entitlement to benefits (e.g., reduced earning capacity) or prompt risk prevention measures (e.g., compulsory placement under PsychKG).
Summary
Drug law is a complex interplay of international, national, and state regulations. The differentiation between legal and illegal drugs, the multitude of criminal offenses governed by law, and comprehensive control mechanisms make the subject highly multifaceted. In addition to repressive measures, prevention, counseling, and therapy form an integral part of society’s response to the drug problem. The development of the law is dynamic and is continuously adapted to new social and scientific findings.
In the context of a legal lexicon, this article provides a detailed presentation of the legal aspects surrounding the concept and regulation of drugs, their classification, criminal consequences, and the relevant legal foundations.
Frequently Asked Questions
What penalties are imposed for possession of illegal drugs in Germany?
Possession of illegal drugs in Germany constitutes a criminal offense under the Narcotics Act (BtMG) and is prosecuted regardless of the type and amount of substance. Penalties range from fines to imprisonment, the severity depending on various factors, in particular the quantity (personal use, minor or non-minor quantity), the type of narcotic (e.g., cannabis, cocaine, heroin), as well as any prior convictions of the offender. For minor amounts intended for personal use, many federal states and public prosecutors forgo prosecution or terminate proceedings (§ 31a BtMG), but this is at the discretion of the competent authority and not guaranteed. Possession of a “non-minor quantity” – defined by law for each substance – carries a minimum sentence of one year in prison. Additionally, license revocation or other consequences, such as problems passing reliability checks in certain professions, may ensue.
What are the legal consequences of driving under the influence of drugs?
Driving under the influence of drugs is a serious violation of the Road Traffic Regulations (StVO) and the Road Traffic Act (StVG). Proof of an intoxicating substance in the blood or urine may already result in administrative proceedings with a fine, points in Flensburg, and a driving ban of at least one month (§ 24a StVG). If unusual driving behavior is observed, resulting in a traffic hazard, criminal prosecution under § 316 (drunken driving) or § 315c StGB (endangering road traffic) is threatened, which can be punished with fines or imprisonment and permanent license revocation. In addition, medical-psychological assessments (MPU) are often ordered as a prerequisite for regaining a driver’s license.
Is private cultivation of cannabis permitted in Germany?
Private cultivation of cannabis in Germany remains fundamentally prohibited. Even small amounts for personal use constitute an unauthorized act under the BtMG. Only within the scope of special legal exceptions—such as for medical purposes and following explicit doctor’s prescription and official permission—is an exemption possible (§ 3(2) BtMG in conjunction with an exemption permit). Unauthorized cultivation can result in imprisonment of up to five years or a fine; for cultivation of non-minor quantities, the penalty increases to at least one year in prison. The law does not distinguish between privately grown and commercially grown plants.
What are the legal differences between various types of drugs?
The BtMG distinguishes between different substance groups (Schedules I to III). For example, different guidelines apply for cannabis with respect to “minor quantity” than for drugs such as heroin, cocaine, or amphetamines. The penalty for possession or trade ultimately depends on the classification, quantity, and danger posed by the drug. Particularly harsh penalties, for instance under § 29a or § 30 BtMG, threaten in cases of dealing in hard drugs (e.g., heroin, cocaine), gang-related crime, endangering minors, or possession of weapons in connection with drug crimes.
Is drug consumption punishable in Germany?
Pure consumption of drugs is not punishable in Germany; however, actions preparatory to consumption, acquisition, possession, manufacture, and distribution are regularly prohibited. Thus, conduct necessary for consumption is almost always punishable in practice. In addition, proof of drug consumption can lead to further consequences, such as license revocation, even if no further criminal or administrative offense is established.
What are the consequences of a drug offense for the certificate of conduct?
Drug offenses are generally entered into the police certificate of conduct if a fine of more than 90 daily rates or a prison sentence of more than three months is imposed. Certain offenses, in particular drug dealing or traffic offenses related to drugs, are also entered for a limited period and can have significant effects on applications, admissions to certain professions (e.g., armed service, medicine, education), and residency rights. For employment or residency permits, drug offenses are particularly taken into consideration.
Are there different penalties for juveniles and young adults for drug offenses?
For juveniles (under 18) and young adults (18 to under 21), the Juvenile Courts Act (JGG) applies, which generally places educational measures (e.g., conditions, community service, drug therapy, supervision orders) above punishment. The aim is education rather than punishment. Nevertheless, custodial or monetary penalties may also be imposed, especially for repeat offenses, gang-related crime, or serious violations. Thus, juvenile criminal law offers greater scope for mitigating measures, but is not automatically “more lenient” compared to adult criminal law when significant dangers exist.
