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Development of German drug legislation

Controlled substances (narcotics)

Criminal and administrative offences as stipulated in the Narcotics Act (BtMG)

Drug use and possession

Enforcement, prosecution and judicial decisions

Prevention, care and treatment

Precursors

 

Development of German drug legislation

            When narcotic drugs abuse increased in Germany at the end of the 1960's, the legal situation with regard to drug abuse and illicit drug trafficking was still subject to the Opium Act of 1929. Therefore, a new Narcotics Act [1] (German: "Betäubungsmittelgesetz") was adopted in 1971. It was based on the so-called Single Convention on Narcotic Drugs of 1961 as well as on the draft of the new Convention of 1971 on Psychotropic Substances. The standard term "narcotics" used in the text below comprises all narcotic drugs and psychotropic substances within the meaning of the aforementioned international drug conventions.

            In response to the further worsening of the drug situation, Members of the German Bundestag and the Federal Government soon afterwards submitted various initiatives for a complete revision of the narcotics law. These initiatives evolved into a body of reforms that included a completely new "Act to Regulate the Trade in Narcotics" (Narcotics Act - BtMG) that was passed almost unanimously by the German Bundestag on 28th July 1981 and entered into force on 1st January 1982. It is the central German law governing narcotics although it has been amended several times meanwhile (see below).

            The paramount objective of the Narcotics Act [1] is the protection of human health. In pursuit of this objective, the Narcotics Act incorporates the following five sets of provisions:

  1. conclusive list of all narcotics as defined by this Act in schedules I to III (schedules as set out in section 1 subs 1);
  2. legal manufacture, trade and operations as well as licensing procedures (sections 3 to 12, 14, 17, 18);
  3. medical prescription of narcotics (section 13);
  4. criminal and administrative offences (sections 29 to 34); and
  5. alternative measures for drug-addicted offenders (sections 34 to 38); these measures were first introduced in 1982 (compare details below: chapter "prevention, care, treatment").

             In addition, the Federal Government issued four statutory ordinances on the basis of the Narcotics Act regulating the following sectors in detail:

  • the prescription of narcotic drugs by physicians, dentists and veterinarians (Narcotic Drugs Prescription Ordinance – BtMVV) [2];
  • the domestic trade in narcotics (Ordinance on the Domestic Trade in Narcotic Drugs – BtMBinHV) [3];
  • the foreign trade in narcotics (Ordinance concerning the Foreign Trade in Narcotics – BtMAHV) [4] and
  • the costs and fees chargeable for the various official acts performed by the Federal Institute for Drugs and Medical Devices (BfArM) for the purpose of monitoring the licit trade and traffic in narcotics (Narcotics – Ordinance on Charges - BtMKostV) [5].

 

            In the broader sense, the narcotic drugs legislation also includes the Precursor Monitoring Act the revised version of which entered into force on 19th March 2008. Moreover, in Germany and the other Member States, several EC regulations are directly applicable to the trade in precursors with countries inside and outside the European Union.

             Last but not least the Criminal Code (StGB), the Code of Criminal Procedure (StPO)and the Juvenile Courts Act (JGG) include important statutory bases for the implementation of investigations and criminal proceedings in cases of illicit trade in narcotics and precursors.

            Since its entry into force in 1982, the Narcotics Act has been extensively amended several times. The most important amendments include the following:

  • the explicit statutory recognition of substitution-based treatment for drug addicts (section 13 subs. 1 sentence 1);
  • the extension of the range of punishment for basic drug offences from "imprisonment of up to four years or a fine" to "imprisonment of up to five years or a fine" (cf section 29 subs. 1);
  • the legal clarification that the supply of sterile disposable syringes to addicts is not liable to prosecution (section 29 subs. 1 sentence 2);
  • eased option of refraining from prosecution in case of minor "personal use" offences based on the sole decision of the public prosecutor without obtaining the consent of the court (decriminalisation pursuant to section 31a);
  • new legal provisions that make it easier for convicted drug-addicted offenders to start or resume drug rehab therapy as an alternative to imprisonment according to the prerequisites set out in sections 35 to 38 of the Narcotics Act;
  • introduction of new penal offences and severe minimum penalties into the Narcotics Act for cases of serious drug trafficking by virtue of the Crime Suppression Act and the Act on Combating Organized Crime (OrgKG);
  • limited permission of industrial hemp cultivation by registered agricultural establishments in accordance with Regulation (EEC) No. 1308/70 on the common organization of the market in flax and hemp (details in section 24a and Schedule I "Cannabis");
  • enabling the establishment of drug consumption rooms (cf section 10a and below in chapter "Prevention, Care, Treatment");
  • introduction of a substitution register and stipulation of the minimum requirements for the qualification of physicians carrying out substitution therapy for the purpose of enhancing the quality, efficacy and safety of the substitution-based treatment of opiate addicts;
  • introduction of diamorphine-based substitution treatment for hardcore opiate addicts.  

 

Controlled substances (narcotics)

            What all "narcotics" have in common is their potential for misuse and/or dependence which makes them, consequently, a hazard to health; these substances have been listed exhaustively in the three Schedules of the Narcotics Act (section 1 subs. 1 and 2 of the Narcotics Act). These Schedules not only include all substances scheduled in the UN Conventions on Narcotic Drugs and Psychotropic Substances but, in addition, those substances which, on the basis of decisions by the European Union (EU) or the German Federal Government, have been classified as narcotics (e.g. the illicit substances 4-MTA, phenpromethamine (PPMA), TMA-2, BZP and many others). Moreover, narcotics are the preparations, molecular compounds, isomers, esters, ethers and salts of the listed substances as specified in the Schedules of the Narcotics Act. Certain preparations of prescribable narcotic drugs (pharmaceuticals) are exempted if they contain the active substance at exclusively low concentrations, such as benzodiazepines (so-called exempt preparations). The most essential criterium for the classification of narcotics into one of the three schedules is their individual medical benefit.

Consequently,

  • Schedule I includes: "non-marketable narcotics"; these are illicit narcotics without current evidence-based medical benefit, e.g. heroin and all Ecstasy-type drugs.
  • Schedule II includes: "licit narcotic drugs, but not available as such on special prescription", e.g. narcotics which are used commercially for the manufacture of other products, particularly pharmaceuticals. These include, inter alia, delta-9-tetrahydrocannabinol (THC) and dexamphetamine.
  • Schedule III includes: "marketable narcotic drugs available on special prescription", these are all narcotic drugs which may be prescribed by physicians, dental surgeons and veterinary surgeons for medical purposes (e.g. opium, morphine and methadone).

            As a rule, these schedules are amended by way of ordinances having the force of law, issued by the Federal Government which was authorized to do so by the legislator (cf section 1 subs. 2 BtMG). In urgent cases, however, the Federal Ministry of Health has the sole authority to include substances and preparations which are not medicinal products into the appropriate schedules for a period of one year if this is necessary due to the extent of misuse and the actual danger to health (cf section 1 subs. 3).


Criminal and administrative offences as stipulated in the Narcotics Act

            Sections 29 to 34 BtMG comprise a comprehensive catalogue of criminal offences, administrative offences and additional provisions applicable in connection with the illicit trade in narcotics. They comprise all criminal offences listed in the 1988 Vienna Convention that must be prosecuted by the signatories. The Narcotics Act distinguishes three categories of offences according to their statutory sentencing range:

  • criminal offences punishable by up to five years imprisonment or a fine; cf section 29 subs 1 nos. 1 to 14;
  • particularly serious cases of criminal offences punishable by imprisonment of not less than one year and not more than 15 years; cf section 29 subs. 3 and section 29a; and
  • crimes which are punishable by imprisonment of not less than two years (in special cases: not less than three or five years) and not more than 15 years; cf sections 30 to 30b.

            Minor violations of mere regulatory provisions are so-called administrative offences that are only punishable with a fine; cf section 32.

             The illicit trafficking and smuggling (import, export, transit), the illicit cultivation and manufacture of narcotic drugs rank among the most serious drug-related offences. The classification into one of the foregoing three categories particularly mainly depends on the set of factual circumstances surrounding the offence, which are explicitly stated in the Act. An aggravating circumstance are, in the first place, not insignificant quantities of narcotic drugs, e.g. in connection with their import. Further aggravating circumstances are, inter alia, for an adult to supply narcotics to a minor (section 29a), for anyone to traffic narcotics "professionally" or as a member of a gang (sections 30, 30a) or, when committing a serious drug-related offence, to carry a firearm or other articles which, by their nature, are likely and intended to cause bodily harm (section 30a).

             Moreover, the statutory range of punishment is the same for all kinds of narcotic drugs, i.e. the type and classification of the narcotic does not influence the sentencing range. However, in determining the sentence the judge may, shall and will always take into account the kind and different risks posed by the individual narcotic involved in the offence. Sentences related to cannabis, especially if small quantities are involved, are usually less severe than those imposed over particularly dangerous narcotic drugs. Both the law and the courts substantially differentiate between offences of trafficking and smuggling (see above) and those which essentially concern the punishable possession of narcotics, particularly for personal use.

 

Drug use and drug possession

            German law does not define narcotic drug consumption as such as a criminal offence. However, anyone who possesses narcotic drugs for their personal use and does not have a written authorisation for their acquisition, shall be considered to commit an offence pursuant to section 29 subs 1 of the Narcotics Act as shall be anyone who cultivates, produces, acquires, trades in narcotics or otherwise places them on the market without any official authorization. There is a scope of discretion in prosecuting personal use offences that has been further extended since 1992. Since then, the public prosecutor may, on the strength of section 31a of the Narcotics Act, refrain from prosecution even without consent of the court if he/she considers the offender's guilt to be minor, if there is no public interest in the offence and the narcotics were only intended for the offender's own use in small quantities.

             The decision by the Federal Constitutional Court of 9th March 1994 set new standards for the prosecution of personal use offences. The Court affirmed that the penalty-enforced prohibition of cannabis is constitutional. It stated that, while the Narcotics Act did not infringe the principles of proportionality, of equality and personal freedom, the prosecution authorities of the Federal Laender should observe the "ban on excessive punishment" enshrined in the German Basic Law in case of minor offences involving the personal use of cannabis; furthermore, it requested the Federal Laender to ensure a "basically uniform practice of application" and, as a rule, to refrain from prosecution if the conditions set out in section 31a of the Narcotics Act apply. With its decisions of 29th June 2004 (file no: Az: BVerfG, 2 BvL 8/02) and 30th June 2005 (Az: BVerfG, 2 BvR 1772/02), the Federal Constitutional Court reaffirmed its earlier decisions on criminal liability.

            In response to the decision of the Federal Constitutional Court of 1994, the Federal Government suggested, at the time, that the Land Ministries of Justice establish uniform criteria for the practice of refraining from prosecution as set out in section 31a of the Narcotics Act – especially for the determination of an "insignificant quantity" of cannabis for personal use as stipulated in this provision. While the Laender never agreed on uniform criteria, the judicial administrations of the Laender established, by and by, different criteria and quantities for the application of section 31a BtMG in individual decrees and guidelines. However, a study that looked at the legal equality and legal reality in the prosecution of drug users (original title: "Die Rechtsgleichheit und Rechtswirklichkeit bei der Strafverfolgung von Drogenkonsumenten" Nomos Verlag, Baden-Baden) that was carried out in March 1997 by the Kriminologische Zentralstelle (German Institute of Criminology) on behalf of the Federal Ministry of Health revealed that where so-called soft drugs are concerned, particularly hashish and marijuana, there is a large degree of agreement throughout Germany on the quantities where the provision of section 31a BtMG is regularly applied, so that an essentially uniform administration of justice as requested by the Federal Constitutional Court can be said to exist. In October 2002, the Federal Ministry of Health and Social Security commissioned the Max Planck Institute for Foreign and International Criminal Law (MPI) with another research project on "drug use and prosecution practice" (Drogenkonsum und Strafverfolgungspraxis). The project aimed to update the findings gained by the German Institute of Criminology in 1997. In March 2006, the MPI concluded that there were "clear differences" in the application of section 31a BtMG that, in view of the stipulations of the Federal Constitutional Court, seemed to be at least problematic and, thus, arrived at what appears to be a tendentially different result, at least for cannabis-related offences, from the 1997 study. The MPI's study triggered a harmonisation process in the Federal Laender so that the Justice Ministers of the Laender now start from an essentially uniform application of the law.

 

Enforcement, prosecution and judicial decisions

            Along with the general provisions of the Criminal Code and the Code of Criminal Procedure, the penal provisions of the Narcotics Act and the Precursors Monitoring Act (Grundstoffüberwachungsgesetz) constitute the legal basis required for all drug-related investigations and prosecution measures by the police, customs authorities and the public prosecutors' offices as well as for court decisions on drug-related offences. Moreover, the Code of Criminal Procedure regulates the rights and duties of the defendant and the defence attorney (lawyers) during the entire criminal proceedings.

            The police are obliged to report every offence to the public prosecutor's office (cf section 163 of the Code of Criminal Procedure, StPO). As a rule, prosecution is mandatory for the public prosecutor as well. This corresponds to the German "principle of mandatory prosecution" (sections 152, 160 of the Code of Criminal Procedure). However, the penal law includes special provisions which allow the public prosecutor, in exceptional instances, to refrain from prosecution ("principle of discretionary prosecution"). Provisions relating to this principle of discretionary prosecution in the Narcotics Act are sections 29 subs. 5 and 31a, in the Code of Criminal Procedure particularly sections 153, 153a to 153e as well as section 154.

            Germany is a Federal State where the Federal Laender enjoy a high level of autonomy also in many aspects of narcotic drugs policy. According to Article 83 of the German Basic Law, they shall execute Federal statutes, unless otherwise provided for by the Basic Law. The Federal Laender have jurisdiction in criminal proceedings over narcotic drugs (except for decisions of last instance by the supreme Federal Courts) and are responsible for monitoring the narcotic drugs trade in doctors' surgeries, pharmacies and hospitals. On the other hand, the control of licit commercial trade with narcotic drugs (manufacture, trade, import, export) as well as the granting of licences is within the purview of the Federal Institute for Drugs and Medical Devices (BfArM).

 

Prevention, care and treatment

            From a historic point of view, the focus of the Narcotics Act is not on measures of prevention, care, treatment and rehabilitation but, on the contrary, on legal instruments required for controlling the trade with narcotic drugs. The purpose of the Narcotics Act is, above all, to ensure the medically necessary supply of the population with narcotics (e.g. for pain management), but also to preclude, as far as possible, the abuse of narcotic drugs and the development and maintenance of a narcotics addiction (section 5 subs. 1 No. 6 BtMG). Since 1981, the increasing number of drug addicts and drug-dependent offenders has led to the inclusion of detailed provisions on demand reduction and harm minimisation into the Narcotics Act, among them "therapy instead of punishment" (1981), substitution-based treatment and the distribution of sterile disposable syringes (1992), drug consumption rooms (2000) and diamorphine-based substitution treatment (2009).

            According to the provisions on "therapy instead of punishment" (sections 35 to 38) the enforcement authority (usually the public prosecutor) may, with the approval of the court, postpone the execution of a prison sentence or the remainder of a sentence of not more than two years for a maximum period of two years, in cases where the convicted person committed the offence as a result of their addiction to narcotics. Another prerequisite for this postponement is, however, for the convict to be undergoing or firmly determined to undergo addiction rehabilitation treatment.

            The time spent in this treatment will, after its completion, be deducted from the duration of the prison sentence. If the offender has completed the treatment successfully, this may lead to a suspension of the sentence and finally to its remission. Under the terms of this Act, treatment especially means residential treatment, mostly in officially recognized private institutions. The institutions providing the treatment are obliged to inform the competent enforcement authority of any discontinuation/dropout of treatment. If the offender does not carry on with the treatment, the suspension of the sentence shall be revoked and its execution continued.

            The admissibility of drug consumption rooms (d.c.r.), which had been controversial for a long time, was decided in the affirmative on 1st April 2000 by a new provision in the Narcotics Act (cf section 10a). It included a catalogue of minimum standards guaranteeing particularly compatibility with the International Narcotic Drugs Legislation. Moreover, the Narcotics Act leaves it to the discretion of the Federal Laender whether or not they wish to permit drug consumption rooms. If so, the Land government has to issue an ordinance based on the Narcotics Act which regulates the details of the licensing procedure and the prerequisites for admission. These ordinances have been issued in six of the 16 Federal Laender. The operators of drug consumption rooms have the task to contact hard-to-reach drug addicts as regularly as possible, provide survival assistance, prevent the typical diseases related to injecting drug use (such as HIV and hepatitis infections), stabilize their health and offer them counselling and treatment to help them quit their illicit activities and drug addiction and to prevent illicit drug trafficking. They have to co-operate closely with all competent authorities and institutions. In 2008, a total of 27 drug consumption rooms with 222 consumption places had been set up in 16 German cities. In cities with drug consumption rooms, the number of drug-related deaths considerably declined. Overall, it can be seen that this low-threshold service reaches the group of hardcore addicts which can then be moved on to other assistance services.

            The "substitution-based treatment of opiate addicts" (abbreviated: substitution treatment/substitution) requires the regular prescription and administration of "substitutes drugs" on the basis of section 13 of the Narcotics Act, whereas section 5 of the Narcotic Drugs Prescription Ordinance (BtMVV) regulates the prerequisites in detail. The most important principle is that such "substitution" may not only consist of supplying the required doses of a substitute (not a mere "dose 'n' go" scheme) but that it also has to include a qualified substitution treatment. This also comprises any necessary psychiatric, psychotherapeutic and/or psychosocial measures of treatment and care (principle of comprehensive addiction therapy). This, in turn, requires close co-operation among all persons involved in treatment.

            Usually in Germany, levomethadone, methadone, buprenorphine and, in special exceptional cases, codeine or dihydrocodeine may be prescribed as "substitute drugs". Since 21st July 2009, narcotic law provisions also permit the use of diamorphine for the management of a severe opiate dependence in special institutions and under strict requirements (e.g. not less than five years history of severe opiate dependence, two failed opiate addiction therapies, patient has completed their 23rd year of life). This treatment can offer individuals with an extremely severe opiate addiction who often can no longer be reached with other substitution treatments a way out of their addiction. The regulation was based on a pilot project in seven German cities that abundantly proved the superiority of diamorphine treatment for this group of extremely dependent individuals (such as improvement of health status, reduction of or abstinence from hard drugs use, enhanced social integration, housing and employment situation).

            The Narcotics Act does not include any provisions on the compulsory treatment of individuals addicted to narcotic drugs. It is true that the Criminal Code (section 64), the Juvenile Courts Act (section 93a) and different acts at Laender level comprise general provisions on the "placement in an institution for withdrawal therapy". However, the application of these provisions is very limited, particularly with regard to persons addicted to narcotic drugs.

 

Precursors

            The new Precursors Monitoring Act (GÜG) [6] entered into force on 19th March 2009. This Act aims to prevent and prosecute the abusive diversion and use of so-called precursors for the purpose of the illicit manufacture of narcotics. The reason for the revision of the Precursors Monitoring Act was a fundamental restructuring and amendment in 2005 of the underlying EU law governing precursors which now regulates major parts of the former GÜG on the European level. Therefore, the new version of the Act only complements three directly applicable EC Regulations by supplying the necessary regulations on regulatory control and monitoring of the trade in precursors as well as criminal and administrative offences.

            The revision of the Precursors – Ordinance on Charges (GÜGKostV) of 30th June 2009 (BGBl. I p. 1678) entered into force on 4th July 2009 [7]. It serves to cover the costs incurred by the Federal Institute for Drugs and Medical Devices (BfArM) through carrying out official acts in the field of precursor control. The licences for the manufacture and purchase of and trade with precursors are issued by the Bonn-based BfArM. The latter also monitors the resale and supply of precursors to third parties. Responsibility for the control of the entire domestic and foreign trade with chemical precursors in lies with the BfArM, the Federal customs authorities as well as the Joint Customs/Police Precursor Monitoring Unit (GÜS) at the Federal Criminal Police Office (BKA).  

 

Endnotes

1.see ELDD: Betäubungsmittelgesetz – Act to regulate the traffic in narcotics

2. see ELDD: Betäubungsmittel-Verschreibungsverordnung - Narcotic Drugs Prescription Ordinance

3. see ELDD: Betäubungsmittel-Binnenhandelsverordnung - Ordinance on the Domestic Trade in Narcotic Drugs 

4. see ELDD: Betäubungsmittel-Außenhandelsverordnung - Ordinance concerning the Foreign Trade in Narcotics

5. see ELDD: Betäubungsmittel-Kostenverordnung - Narcotics – Ordinance on Charges

6. see ELDD: Grundstoffüberwachungsgesetz - Precursors Monitoring Act

7. see ELDD: Grundstoff-Kostenverordnung - Ordinance on Charges

 

 
 

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Page last updated: Monday, 19 March 2012