Possession of cannabis
From what amount am I punishable? And what penalties threaten?
Defense attorneys are repeatedly asked by clients what is meant by the terms "small amount" and "not small amount". At the same time, the term "personal use" is misleading in the minds of many clients, but what do we really mean by these amounts and what are the consequences of the so-called "personal use".
But what is cannabis?
The drugs that are obtained from the hemp plant are considered cannabis. This includes, on the one hand, the well-known marijuana. These are the dried flowers of the hemp plant, with some stems and leaves also being processed. Usually the marijuana is smoked. In addition to marijuana, hashish and hashish oil are also cannabis products. Hashish consists of the pressed resin of the plant, which can be smoked as well as consumed in connection with food or drinks.
Is owning a small amount of cannabis for personal consumption punishable?
§ 29 Paragraph 1 No. 1 BtMG states that anyone who grows, produces, trades, introduces, trades or executes narcotics illegally, trades or executes, sells, surrenders or otherwise places on the market, acquires or acquires procured in another way. According to § 29 paragraph 1 No. 3 is also punishable who owns narcotics, without at the same time to be in possession of a written permission for the acquisition. As a result, consumption is not punishable per se but possession of cannabis. Thus, it can not be inferred from that provision that possession of a small quantity, which may be for own use, would lead to impunity. But on the contrary. It basically does not matter if you own the drugs for personal use or if you only own the drug to sell it at a later date.
However, the courts have an important provision in Section 29 Paragraph 5 BtMG. This states that the court refrain from punishment under paragraph 1 canif the culprit only narcotics for ownconsumption in small quantities cultivates, introduces, carries out, carries out, acquires, procures or owns in any other way. The emphasis, however, is on "can", which means that the widespread view that owning a small amount of self-consumption can not be punished in principle is completely wrong.
On the one hand, it must be a small amount, on the other hand, this small amount must be intended for self-consumption. And even if both of these conditions are met, the court can nevertheless declare criminal liability, for example, if there is repeated drug possession.
When is one? "small amount" in front?
A small amount refers to the (gross) amount of a drug to which Section 29 Paragraph 5 BtMG precludes mandatory criminal prosecution. However, how much you can speak about a small amount varies from state to state. The Bavarian public prosecutor's offices treat only cannabis quantities up to three consumption units of 2 gram each, thus altogether 6 gram as "small quantity". It should be made clear, however, that these are merely indicative, which prosecutors or judges may deviate on a case-by-case basis.
When is one? "not small amount" in front?
Contrary to popular belief, the determination of a not insignificant amount does not depend on the (gross) amount by weight of the anesthetic but, as a rule, on the amount of active substance. This makes sense, in particular, because the danger of dealing with cannabis does not depend on the absolute amount, but on the content of the "psychotropically active substance". In Bavaria, one speaks of a "not small amount" if the cannabis contains more than 7,5 g THC (tetrahydrocannabinol).
What penalties threaten?
The distinction between the "small amount" and the "not insignificant amount" is relevant in particular with regard to the expected penalty. By way of example, the practical implications will be briefly explained.
Suppose one person X purchases 60 grams of cannabis with a content of 15% for their own use. X is caught as first offender. Since the (gross) amount of cannabis has an active ingredient content of 15%, the cannabis contains 9 grams of THC, exceeding the limit of 7,5 g THC in Bavaria, so this is a "not insignificant amount" and the penalty § 29a BtMG: imprisonment from 1 year to 15 years. In Bavaria, X is then likely to be sentenced to imprisonment for 12-18 months.
If we now modify the case that X 40 acquires grams of marijuana with an active ingredient content of 15%, this results in the cannabis containing 6 grams of THC and thus can not be classified as a "not insignificant amount". However, since the limit of the "small amount" (in Bavaria as a guideline a gross amount of 6 grams) is far exceeded, the refusal of the penalty under § 29 para. 5 BtMG is out of the question. With regard to sentencing, however, the sentence of § 29 BtMG is used: imprisonment up to 5 years or fine. In Bavaria, X is sentenced to the first offender to a fine.
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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