§ 31 BtMG - if the friend becomes a traitor?
The provision of § 31 BtMG opens up the possibility for the court, at its own discretion, to mitigate the penalty or even to refrain from punishment altogether if the perpetrator by voluntarily revealing its knowledge has contributed significantly to the fact that the deed beyond his own Tatbeitrag could be uncovered (§ 31 S.1 No. 1 BtMG), or if he volunteers his knowledge so timely disclosed to a department that crimes under §§ 29 Abs. 3, 29a Abs. 1, 30 Abs. 1, 30a Abs. 1, whose planning he knows can still be prevented (§ 31 S.1 No. 2 BtMG). For this reason, the provision of § 31 BtMG is also called "leniency"And in some circles as so-called"Judas paragraph" designated.
What goal does the legislator pursue with § 31 BtMG?
The criminal policy objective of the provision is to penetrate the information aid of an accused in the narcotics market, break up gangs and criminal organizations and thus the prosecution of already committed (§ 31 S.1 No. 1 BtMG) and the prevention of planned narcotics offenses (§ 31 p 1 No. 2 BtMG).
Does the § 31 BtMG also apply to other types of offense?
The answer in advance: no. The § 31 BtMG applies exclusively as a special Strafzumessungsnorm in proceedings for violations of the Narcotics Act. However, a corresponding standard for other types of offense can be found in § 46b StGB, although the requirements of the respective standards are quite different.
Is the disclosure of foreign acts covered by § 31 BtMG?
Yes, for the application of § 31 BtMG it is irrelevant whether the disclosure refers to foreign or domestic acts. Because the pursued criminal-political goal of the § 31 BtMG (Combating drug trafficking) is regarded not only as a national, but rather as an international concern. Of crucial importance, however, is that the privileges (Penalty mitigation or refrain from punishment) can only be considered for cases of actually committed and actually planned crimes.
However, in the opinion of the Federal Court of Justice, if the conditions of § 31 BtMG are met, the courts should offer substantial penalty deductions, otherwise the purpose of the provision (especially important in cases of massive gang violence) would run counter to the fact that the amount of the imposed penalty would no longer provide an incentive for disclosure.
Prerequisites of § 31 S. 1 No. 1 BtMG (Information Aid)
- 31 S.1 No. 1 BtMG regulates cases in which the Auxiliary Clerk voluntarily gives his or her knowledge of the facts of the case Past and thereby contributes to the elucidation of life processes beyond its own Tatbeitrag addition. Classic examples are: appoint backers and customers.
In order to affirm the reconnaissance aid, the following prerequisites must be fulfilled: The informing aide must
- by voluntarily revealing his knowledge
- as regards a narcotics offense related to his offense
- contribute to a significant educational success.
Requirements of § 31 No. 2 BtMG (Prevention Aid)
According to § 31 No. 2 BtMG, a perpetrator can also benefit from the punitive rebate if he relinquishes his knowledge to prevent theft of serious narcotics offenses that are still in progress planning stages to contribute. In practice, however, this variant is not as common as that of § 31 S.1 No. 1 BtMG.
To affirm the § 31 S.1 No. 2 BtMG must be the offender
- through voluntary and timely disclosure of his knowledge
- to a department
- to prevent a serious narcotic offense related to his offense.
The risks and dangers of leniency
Although the introductory words of § 31 BtMG ("The court may mitigate (...) the punishment or (...) refrain from punishment" may seem tempting at first glance, but one should also be aware of the risks and dangers of this provision ,
First, it is of considerable importance that the court is not obliged to use the provision and grant a penalty. Because as § 31 BtMG says, "(...) CAN" the court (...)". In this respect, the trial court will consider all circumstances - including the scope and importance of the educational contribution, severity of the respective acts - and affirm the existence of the requirements of § 31 BtMG or have to deny it. Neither the police nor the prosecution have any influence on this.
Report an accused in the context of a disclosure under § 31 BtMG thanDrug offenses in which he was involved, so he will burden himself thereby and possibly participate in his own prosecution. Thus, one deed can quickly become several deeds.
The reason why many defendants deny the possibility of a penalty rebate under § 31 BtMG, of course, lies in the imminent consequences that may be accompanied by the naming of persons. This aspect too should play a role in the question of whether to make use of this provision.
If you also have questions about criminal law, do not hesitate to contact us. Our Lawyer Alexander Greithaner specializes in the field of criminal law and will also help you.
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