§ 29a para. 1 No. 1 BtMG
the delivery of narcotics to adolescents and their consequences
Already at the first glance at the provision of § 29a BtMG, the reader is struck by the much higher sentence compared to § 29 BtMG:
are the introductory words of § 29a BtMG. This not only clarifies that the penalty between 1 year and 15 years moves, but in addition, the § 29a BtMG thereby becomes a crime (minimum custody of 1 year), which in turn means that a recruitment for insignificance acc. § 153 StPO or a setting against restrictions acc. § 153a StPO is excluded from the outset.
Thus a criminal liability acc. 29a para. 1 No. 1 BtMG can be affirmed, a person who is already over 21 years, a narcotic person give, administer or give person narcotic. In this respect, the age of the persons involved plays an essential role within the framework of this provision. Gives an adolescent, so a person between 18 and 21 years, a minor person narcotic, does not apply the rule of § 29a BtMG. If the recipient of the narcotics is already 18 years old, the § 29a BtMG also does not apply. The provision simply serves the protection of minors and wants to prevent more and more young people from slipping into the drug scene as consumers or as traders.
As an act, the law called three variants: the levy, the consumption and the administering. By levy, the legislator understands the unauthorized transfer of their own actual power of disposition. The emphasis is on "actual power of disposal", Which can only be affirmed if the minor can now freely dispose of the narcotics and therefore can decide for himself what he does with it. If, for example, narcotics are handed over to a minor who acts only as a messenger for a person over 21 years, there is no tax within the meaning of § 29a Abs. 1 No. 1 BtMG, since the minor messenger himself does not acquire his own domain rule, but exercises this for the recipient (OLG Munich, order v. 08.10.2014 - 4 OLG 13 Ss 452 / 14)
With the transfer of consumption, the legislator understands leaving it to direct consumption, ie the transfer of narcotics to another for immediate consumption. In contrast to the levy described above, it does not matter whether or not the minor obtains actual control over the narcotics, so that both options are mutually exclusive. Although some may now argue that the use of drugs is not punishable, which is perfectly true. However, the surrender to consumption contradicts the intention of the legislator (protection of minors), which is why this offense is punishable.
Administration of anesthetics is the direct application of anesthetics to the body or the introduction of anesthetics into the recipient's body without its participation. Also in this variant, the recipient does not obtain actual power of disposition. Classic case: putting a syringe.
In general, the offender will be an adult drug trafficker who sells narcotic drugs for self-interest. However, the provision of § 29a BtMG also applies to those persons who, out of compassion, friendship, helpfulness or other social aspects, supply underage narcotics dependent persons.
In addition to the above actions and the described age limit, § 29a para. 1 No. 1 BtMG further presupposes, in the context of the subjective facts, that the perpetrator knew or at least accepted with approval that the person to whom he gives off drugs is a minor , It is therefore not absolutely necessary that the minor informs the perpetrator of his or her age; on the contrary, it is sufficient for criminal liability for the offender to count on the possibility that the addressee of the offense is a minor. Many factors will play a role here, such as: the minor's appearance and stature, the minor's behavior, the perpetrator knew which school the minor was attending. In this respect, the claim "I did not know how old he is" often does not lead to the hoped-for result.
Due to the high punitive maintenance, you should consult a lawyer as early as in the preliminary proceedings, but no later than in the main proceedings. As an accused, you should absolutely make use of your right to silence and initially do not give any information on the matter. Contact us, we will help you.
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