In most countries worldwide, handling narcotics is prohibited. In countries like Malaysia or Singapore, merely possessing narcotics can even result in the death penalty. Almost all countries determine the severity of punishment for drug possession based on the quantity of the substance.
Reasons for Criminalization
The Narcotics Act (BtMG) aims to ensure the medical supply of the population while preventing the abuse of narcotics and avoiding drug dependency as much as possible.
The purpose of narcotics criminal law, as stated by the legislator, is to protect public health. However, this justification is questionable when considering the purpose of criminal law:
- Aside from the criminal offense of drug trafficking, which aims to prevent corruption within society by financially strong criminal organizations, the mere consumption of drugs is a form of self-endangerment.
- This self-endangerment is comparable to smoking, alcohol consumption, or other risky behaviors that individuals willingly engage in.
- For adults, the argument of potential addiction remains the main justification for criminalization, even though the consumption of cannabis products rarely leads to severe addiction.
The Federal Constitutional Court ruled about 20 years ago that there is no “right to intoxication” and allowed the legislator to maintain all criminal provisions of the BtMG, even for cannabis.
However, the court also required that cases involving small amounts for personal use should generally be dismissed to comply with the constitutional principle of proportionality. Yet, the implementation of this ruling varies significantly between federal states.
What Acts Involving Narcotics Are Punishable?
The primary offense is found in Section 29 (1) BtMG, which criminalizes nearly all direct and indirect dealings with narcotics:
- Cultivation: This includes sowing, tending, and growing plants, regardless of whether they contain active ingredients.
- Manufacturing: Producing, preparing, processing, refining, or converting narcotics.
- Trafficking: Any effort aimed at enabling or promoting the distribution of narcotics.
- Import: Bringing narcotics across borders into the country, including by mail or courier.
- Export: Sending narcotics out of the country.
- Selling: Transferring narcotics for payment, as long as no personal profit is involved.
- Distribution: Transferring narcotics without payment, such as sharing drugs among friends.
- Other Forms of Circulation: Any action that enables another person to gain control over narcotics.
- Acquisition: Gaining possession of narcotics through a transaction.
- Possession: Holding narcotics for a significant period with control over their use.
Attempting to commit these acts is also punishable under Section 29 (2) BtMG. Additionally, negligence can be punished under Section 29 (4). However, courts may waive punishment for minor offenses intended for personal use.
Severe Offenses Under the BtMG
Sections 29a, 30, and 30a BtMG define aggravated offenses, increasing minimum sentences to 1, 2, or even 5-15 years in cases involving:
- Endangering minors
- Causing harm through drug distribution
- Handling significant drug quantities
Each of these aggravated offenses contains a provision for “less severe cases,” which can lead to reduced sentences.
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