Term and Legal Definition of Narcotics
Narcotics is a legal and criminal policy term generally referring to substances whose production, trade, import, export, distribution, possession, and acquisition are controlled and, to a large extent, prohibited by state authorities. The precise definition and the criminal and administrative legal provisions are the subject of extensive statutory regulations, especially under German and international law.
Legal Foundations in Germany
Narcotics Act (BtMG)
The central legal basis in German law is the Narcotics Act (BtMG). The act regulates the handling of narcotics, commonly referred to as narcotics, and expressly lists the respective substances and preparations in its Appendices I to III.
Substances qualifying as narcotics under the BtMG include, for example, heroin, cocaine, hashish, amphetamine, methamphetamine, and ecstasy. Certain pharmaceuticals that can be abused due to their effects are also included in this category.Definition according to BtMG:According to § 1 BtMG, narcotics are those substances and preparations listed in Appendices I (non-marketable narcotics), II (marketable but not prescribable narcotics), and III (marketable and prescribable narcotics). Not every addictive substance thus automatically falls within the legal definition of a narcotic.
Distinction from Other Substances
Substances such as alcohol, nicotine, and caffeine do not fall under the term narcotics. These are explicitly excluded from the scope of the BtMG and are regulated by other laws, such as the Youth Protection Act or the Medicines Act.
New Psychoactive Substances (NpSG)
With the New Psychoactive Substances Act (NpSG), a supplementary legal framework was created to regulate the rapidly changing market of so-called ‘legal highs’. These substances are often traded as narcotics but were initially not clearly regulated by law, as they were not explicitly listed in the BtMG.
Criminal Law Aspects
Criminal Provisions of the BtMG
The BtMG contains, in §§ 29 and following, numerous criminal provisions regarding the handling of narcotics. In particular, punishable are:
- Cultivation, Production, Trade, Import, and Export (§ 29 BtMG)
- Possession and Acquisition (§ 29 BtMG)
- Administration to Other Persons (§ 29a BtMG)
- Participation in Organized Groups (§ 30 BtMG)
- Serious Drug Trafficking and Organized Offenses (§§ 30, 30a BtMG)
Sentencing and Penalty Ranges
Depending on the type and quantity of narcotics as well as the specific offense, different penalty ranges apply. For unauthorized possession of small amounts, fines or imprisonment of up to five years may be imposed under § 29 BtMG. Particularly serious cases, such as organized trafficking in significant quantities, can be punished with up to 15 years imprisonment.
Less Serious and Minor Cases (“Personal Use”)
The law provides mitigating provisions if the unauthorized acquisition or possession of narcotics is only in small quantities for personal use. In such cases, prosecution may be discontinued by the public prosecutor’s office under § 31a BtMG, subject to certain conditions.
Administrative and Regulatory Provisions
Medicines Act and Other Legal Sources
In addition to the BtMG, other laws also govern the handling of substances susceptible to abuse as narcotics, such as the Medicines Act (AMG) and the Chemicals Act. These come into play, in particular, when narcotics are to be used legally for medical or scientific purposes.
Driver’s License Law Consequences
In traffic law, dealing with narcotics is of special significance. Even the mere detection of use can, according to § 14 FeV (Driver’s License Ordinance), lead to the revocation of the driver’s license. According to § 24a StVG, driving a motor vehicle under the influence of certain intoxicating substances is prohibited and is prosecuted as an administrative offense or a crime.
International Law
UN Conventions
The legal classification and control of narcotics at the international level are determined by several United Nations conventions, in particular:
- Single Convention on Narcotic Drugs of 1961
- Convention on Psychotropic Substances of 1971
- Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988
These conventions oblige the signatory states to control and criminally prosecute the trade, trafficking, and possession of narcotics.
Implementation into National Law
German legal provisions such as the BtMG implement the aforementioned international requirements into national law. Therefore, the term narcotics is also clearly defined and harmonized in the context of international and European law.
Medical and Scientific Exemptions
Although the term narcotics mainly encompasses substances with addiction potential, their use for medical, scientific, or designated industrial purposes can be authorized. For these uses, exemptions are granted under §§ 3, 5 ff. BtMG and are strictly monitored.
Summary
The term narcotics does not have a direct definition in German law but is defined through the Narcotics Act. It refers to all narcotics mentioned in the Appendices, the handling of which is reserved to the law. The abusive use and illegal trade are strictly prosecuted under criminal and regulatory law. At the same time, exceptions and special provisions allow certain uses, whereby each phase—from cultivation to application—is comprehensively regulated. International treaties form the framework within which German law develops its national specifics.
This article provides a comprehensive legal overview of the term narcotics and presents the most important statutory regulations and framework conditions for handling, punishing, and the legal application of narcotics.
Frequently Asked Questions
What is meant by the criminal liability of narcotics possession?
Possession of narcotics that fall under the Narcotics Act (BtMG) is generally a criminal offense in Germany. According to § 29 BtMG, even possession of a small amount without a permit constitutes a crime. It is irrelevant whether the possession is for personal use or for distribution. The decisive factor is actual control over the substance. However, for small amounts intended solely for personal use, prosecution may be waived under § 31a BtMG, but this is at the discretion of the public prosecutor and depends on other factors such as prior convictions and the type of substance. The threshold for a ‘small amount’ is not uniformly defined throughout Germany and varies depending on the federal state. Possession for medical or scientific purposes is only permitted under the appropriate official permit.
When does a person make themselves liable for dealing in narcotics?
Dealing covers any self-interested activity aimed at the commercial exchange of narcotics. The term is broadly defined and includes selling, buying, brokering, storing, as well as any other facilitation of a transaction, regardless of intent to make a profit. Merely initiating or mediating a transaction fulfills the offense of dealing under § 29 para. 1 no. 1 BtMG. It is sufficient for someone to take active steps to enable or promote trafficking in narcotics. Dealing is punishable by imprisonment of up to five years or a fine, and in serious cases—such as commercial dealing or large quantities—a minimum imprisonment of one year is prescribed (§ 29a, § 30, § 30a BtMG).
What penalties can be imposed for the unauthorized cultivation of cannabis?
The unauthorized cultivation of plants intended for the production of narcotics—such as cannabis—is punishable under § 29 BtMG. It is irrelevant whether the plants are ultimately harvested or consumed. Even attempting cultivation is a criminal offense. The penalty ranges from a fine to up to five years imprisonment, and higher in particularly serious cases. When determining the sentence, particular attention is paid to the number of plants and their active ingredient content, whether they are for personal use, and whether there is a risk to others. In some federal states, prosecution may also be waived for small amounts and exclusively personal use, but there is no guarantee.
When does a ‘serious case’ of a narcotics offense exist?
A ‘serious case’ under §§ 29a, 30, 30a BtMG exists in particular when certain qualifying circumstances are present that increase the severity of the offense. This includes, for example, dealing, importing, exporting, selling, or distributing narcotics in substantial quantities, the distribution of narcotics to minors, or acting as a member of a gang. The minimum penalty in such serious cases is one year imprisonment, and it can be up to 15 years. What constitutes a ‘substantial quantity’ is specified for each substance (e.g., for cannabis over 7.5g THC). The penalty ranges in serious cases demonstrate the high level of importance the legislature attaches to protecting society from narcotics offenses.
Can investigations into narcotics offenses be discontinued?
Investigations into narcotics offenses can be discontinued, particularly for first-time possession of small amounts for personal use. Under § 31a BtMG, this is at the discretion of the public prosecutor, who will consider factors such as prior convictions, type and amount of the narcotic, and danger to third parties. Discontinuations are often subject to conditions or instructions (e.g., participation in counseling sessions). However, there is no automatic discontinuation, and for repeat offenses or when additional crimes are involved, discontinuation is hardly possible. The threshold for the ‘small amount’ is also established differently in each federal state.
What special rules apply to the prosecution of juveniles and young adults for narcotics offenses?
For juveniles (14 to 17 years) and young adults (18 to 20 years), the Juvenile Court Act (JGG) applies. Here, the focus is on education, so educational measures, community service, or instructions are often imposed. Imprisonment is only ordered if no other measure is deemed promising. For young adults, the court examines whether juvenile criminal law is still applicable. Juvenile court proceedings are much more strongly oriented towards the developmental status of the offender and special preventive aspects than proceedings involving adults. The possibilities for discontinuing proceedings are also expanded.
What are the consequences of violating a driving ban after a BtMG conviction?
Violating a court-ordered driving ban after a BtMG conviction constitutes an administrative offense or even a crime, depending on the specifics of the ban. The driver’s license can be revoked because of possession or use of certain narcotics (e.g., cannabis, amphetamine, cocaine). Regaining the license is usually tied to a successful Medical-Psychological Assessment (MPU). Additionally, the driver’s licensing authority may require a medical report or proof of abstinence. If the person concerned disregards the driving ban, further criminal and administrative consequences may follow, up to permanent revocation of the license.
