Criminal Law on Narcotics

The charge arises following a search of a residence, a police stop, the analysis of a cell phone, or the seizure of a package. Often, it is not immediately clear what exactly the charges are. Possession, acquisition, importation, distribution, and trafficking are legally distinct offenses, and the distinction between them significantly affects the range of possible penalties.

The decisive factors are the type of substance, its quantity, and its active ingredient content. Other factors include the presumed use, potential sales activities, communication data, and the question of what you knew and intended. As of April 1, 2024, cannabis is generally no longer subject to the Narcotics Act but rather to the Recreational Cannabis Act—which has reorganized criminal liability and sentencing guidelines but has not legalized cannabis in general.

As a defendant, you have the right under Section 136 of the Code of Criminal Procedure (StPO) to remain silent regarding the charges and, under Section 137 of the StPO, to have legal representation at every stage of the proceedings. I will review the specific charges, the investigative file, the seized substances, the expert reports on the active ingredients, and the classification of the individual pieces of evidence.

An Overview of the Topics

The charges — possession, acquisition, trafficking, distribution, and importation

Section 29(1) of the German Narcotics Act (BtMG) criminalizes numerous forms of dealing with narcotics: cultivation, manufacture, trafficking, importation, exportation, sale, distribution, acquisition, and possession. The basic offense is punishable by imprisonment for up to five years or a fine. However, the specific form of the offense is not yet determined by the description provided during the preliminary investigation—and the differences are significant.

Possession requires actual control and a corresponding intent to possess; mere physical proximity is not sufficient in and of itself. Acquisition refers to the consensual attainment of one’s own power of disposition, while surrender refers to the transfer of that power to another person. These distinctions may seem minor, but they determine the applicable range of criminal penalties.

The concept of “trafficking” has the broadest scope. According to established case law, it encompasses any self-serving activity aimed at the sale of narcotics—a completed sale or an actual profit is not always required. The Federal Court of Justice has confirmed this line of reasoning, among other instances, in its decision of February 10, 2021, 6 StR 453/20. With regard to cannabis, case law has been based on the same premise since the KCanG took effect.

Importation requires the goods to be brought across the German border; if the quantity is significant, a higher penalty range applies under § 30(1)(4) of the German Narcotics Act (BtMG). Participation, complicity, and aiding and abetting must each be assessed separately—those who merely drove, those who merely acted as intermediaries, and those who had control over the goods are not treated equally under the law.

The Amount of Active Ingredient — The Significance of a Substantial Amount

It is not the gross weight that matters, but the amount of active ingredient contained. Two quantities of a substance that appear to be the same size may therefore be assessed quite differently under the law. If the active ingredient reaches the threshold for a “non-negligible amount,” § 29a, § 30, or § 30a of the BtMG may apply.

The difference is significant. Section 29a(1)(2) of the BtMG covers, among other things, trafficking, manufacturing, distributing, and possessing a non-negligible quantity; the standard penalty range begins at one year of imprisonment. Section 30(1)(4) of the BtMG concerns the importation of a non-negligible quantity and provides for a prison sentence of no less than two years. Section 30a of the BtMG contains additional aggravating factors, such as trafficking committed as part of a criminal organization or with the use of weapons.

The threshold values are not specified in the law. They were established for individual active ingredients through case law, which is why the amount can typically only be reliably assessed on the basis of a chemical-toxicological report. If the active ingredient has not been identified, it is not possible to readily infer the active ingredient content from the gross weight—a point that is often overlooked in practice.

With regard to cannabis, the Federal Court of Justice ruled after the KCanG took effect that the threshold for a “significant amount” remains at 7.5 grams of THC: Order of April 18, 2024, 1 StR 106/24, confirmed, among other things, by the order of April 23, 2024, 5 StR 153/24. This refers to the amount of active ingredient, not the total weight of the plant material.

Intent — Knowledge of the Substance, Quantity, and Purpose

An intentional crime requires that you were aware of the relevant circumstances, or at least considered them possible and accepted them. This primarily concerns the nature of the substance, your ability to control it, and the specific act alleged in each case. Section 15 of the German Criminal Code (StGB) stipulates that negligent conduct is punishable only if the law expressly provides for it.

The mere presence of an item in an apartment, a vehicle, or a storage room does not prove either knowledge or intent to possess. Conversely, messages, packaging materials, access rights, keys, money transfers, and prior agreements are considered as circumstantial evidence. When multiple parties are involved, a distinction must be made as to who had access to which subset of items and who was even aware of which contribution—a distinction that is often not made in investigative files.

The assumed intended use also has an impact: A quantity intended for personal consumption is classified differently than one intended for sale at a profit. In the case of mixed inventories, it may be necessary to classify individual sub-quantities.

In cases involving specific elements of the offense, intent must generally also relate to the circumstances that justify the increased severity of the penalty. According to case law, for a “non-negligible quantity,” it is sufficient that the defendant’s understanding extends to a quantity and quality that actually reaches the threshold. Whether the defendant had precise knowledge of the active ingredient’s value is then a matter of the court’s assessment of the evidence.

Investigative Measures — Search, Seizure, and Pretrial Detention

Searches are a common feature of many of these proceedings. Under Section 102 of the Code of Criminal Procedure (StPO), the residences, other premises, persons, and property of suspects may be searched if such a search is likely to lead to their apprehension or the discovery of evidence; in the case of third parties who are not under suspicion, the more restrictive requirements of Section 103 of the Code of Criminal Procedure apply. The specific premises and items covered are specified in the warrant—and its scope is not always as broad as it is interpreted on site.

Under Section 94 of the Code of Criminal Procedure (StPO), objects may be seized or confiscated if they may be relevant as evidence. In addition to substances, this primarily applies to cell phones, storage media, cash, scales, packaging, and documents. In the case of digital devices, a distinction must be made between the seizure of the device and the subsequent analysis of its data—both are subject to their own requirements and are often treated as a single process in practice.

Your rights apply throughout the entire process: You have the right to remain silent regarding the matter, and your silence may not be construed as an admission of guilt. Under Section 137 of the Code of Criminal Procedure (StPO), the right to a defense applies at every stage of the proceedings—including during a search and any subsequent interrogation.

Pretrial detention is not an automatic consequence of a serious allegation. According to Section 112 of the Code of Criminal Procedure (StPO), it requires strong suspicion of a crime, a statutory ground for detention, and proportionality; the primary grounds for detention are flight, risk of flight, and risk of tampering with evidence. The severity of the expected sentence alone is not sufficient for this—even though it is regularly emphasized in arrest warrants.

Legal Consequences — Penalty Ranges, Sentencing, and Forfeiture

The statutory penalty ranges vary widely. Section 29(1) of the BtMG provides for a fine or imprisonment for up to five years; Section 29a(1) of the BtMG starts at one year of imprisonment, Section 30(1) of the BtMG at two years, and even higher minimum penalties may apply for the aggravated offenses under Section 30a of the BtMG. Some of these provisions contain separate penalty ranges for less serious cases—this distinction often carries more weight than the evidence of the offense itself.

Sentencing must be distinguished from the range of possible penalties. Factors such as the type and quantity of the active substance, the defendant’s role in the offense, motives, the stage of distribution, prior convictions, and post-offense conduct are relevant. Drug addiction may be legally significant, but it does not automatically lead to a specific legal consequence.

Section 31 of the German Narcotics Act (BtMG) allows for a reduction in punishment or a waiver of punishment under strict conditions if the individual voluntarily contributes significantly to the investigation beyond their own role in the offense or prevents a planned offense. The conditions and consequences depend on the timing, content, and verifiable significance of the information provided. A blanket assessment is not permitted—and a thoughtless statement cannot be retracted.

In addition to the penalty, there is forfeiture. Under Section 73 of the German Criminal Code (StGB), property obtained through or in connection with the offense is subject to forfeiture; if the property is no longer available, forfeiture of its value may be considered. Narcotics and instruments used in the commission of the offense may be forfeited pursuant to Section 33 of the Narcotics Act (BtMG) and Sections 74 et seq. of the Criminal Code (StGB). A distinction must be made between proceeds from sales, money that has been transferred, and amounts merely held in custody—a distinction that is often not made in forfeiture petitions.

Criminal Law on Cannabis — The Legal Situation Since April 2024

As of April 1, 2024, new regulations governing the use of recreational cannabis took effect. Cannabis was generally removed from the schedules of the BtMG; since then, provisions regarding criminal penalties and fines have been primarily set forth in Sections 34 and 36 of the KCanG. This has significant implications for both ongoing and past proceedings.

Under Section 3 of the KCanG, adults are permitted to possess limited quantities: up to 25 grams outside their place of residence or habitual residence, and up to 50 grams at their place of residence. Possession in excess of these limits, up to the thresholds set forth in Section 36 of the KCanG, may constitute an administrative offense. Pursuant to Section 34(1)(1) of the KCanG, possession is a criminal offense only when these limits are exceeded—more than 30 grams outside one’s place of residence, or more than 60 grams in total. For flowers and similar plant material, these quantities refer to the dry weight.

Trafficking, importation, exportation, and, in principle, distribution or transfer remain punishable under § 34 KCanG; the basic offense is punishable by imprisonment for up to three years or a fine. If the offense involves a significant quantity, it generally constitutes a particularly serious case under Section 34(3), sentence 2, no. 4 of the KCanG. The Federal Court of Justice has upheld the threshold of 7.5 grams of THC since its decision of April 18, 2024, 1 StR 106/24.

For acts committed before April 1, 2024, § 2(3) of the German Criminal Code (StGB) requires a determination of which law is more lenient in the specific case. The new legal situation therefore does not automatically lead to immunity from punishment—nor, in certain circumstances, to a more favorable outcome.

Teenagers and Young Adults

In the case of young defendants, the provisions of the Juvenile Court Act apply in addition to the Narcotics Act (BtMG) or the Cannabis Act (KCanG). According to Section 1(2) of the Juvenile Court Act (JGG), a “juvenile” is a person who was 14 but not yet 18 years old at the time of the offense; an “adolescent” is a person who was 18 but not yet 21 years old. The decisive factor is the time of the offense, not the time of the trial.

Juvenile criminal law applies to minors. Pursuant to § 2 of the Juvenile Criminal Code (JGG), it must be primarily guided by the principle of rehabilitation; possible legal consequences include rehabilitative measures, disciplinary measures, and, under the conditions set forth in § 17 JGG, a juvenile sentence. The ranges of punishment under general criminal law are not directly applied in this context—which fundamentally changes the defense strategy in cases involving controlled substances.

For adolescents, Section 105 of the Juvenile Criminal Code (JGG) determines whether juvenile or adult criminal law applies. Juvenile criminal law is primarily considered when an overall assessment of the individual’s personality and environmental conditions indicates a level of maturity typical of adolescents, or when the nature, circumstances, or motives of the offense correspond to those of a juvenile offense. This classification is often the most important single aspect of the proceedings.

Searches, seizure, forfeiture, and pretrial detention also play a role in cases involving young defendants; Section 72 of the Juvenile Court Act (JGG) sets forth additional requirements for pretrial detention of juveniles. In cases involving drug-related offenses, the special provisions of Sections 35 through 38 of the Narcotics Act (BtMG) regarding treatment and enforcement may be significant.