There are several ways in which a suspect can be informed that an investigation is pending against him for suspected violation of the Narcotics Act (BtMG). Regardless of whether he is informed by an unpleasant house visit (house search) or by a letter from the investigative authorities, the accused is extremely well advised to contact a lawyer immediately.
He will discuss the evidence as well as the further course of action with the client during the first talks with his client and after having checked the file. Based on all information, the defender must set the defense goal.
Refraining from punishment / refraining from persecution
In addition to the employment opportunities available in the Code of Criminal Procedure for reasons of opportunity (Sections 153 et seq. StPO), the Narcotics Act offers two further provisions. On the one hand, § 29 Paragraph 5 BtMG:
“The court can choose from one punishment refrain from paragraphs 1, 2 and 4 if the perpetrator only grows, manufactures, imports, exports, carries out, purchases, acquires, obtains or owns the narcotics in small quantities for his own use. "
Based on the modalities of the crime, it can already be seen that so-called "third-party inspection methods“Are exempted from the facts and therefore an application of this provision to trading, selling, supplying and placing on the market is excluded.
In contrast to Section 29 (5) BtMG, Section 31a (1) BtMG already enables the public prosecutor's office persecution anticipate:
"If the proceedings involve an offense pursuant to Section 29 (1), (2) or (4), the public prosecutor can refrain from prosecuting if the guilt of the perpetrator is negligible, there is no public interest in the prosecution and the perpetrator uses the narcotics only grown in small quantities for own consumption (…). "
In addition to the requirements of Section 29 (5) BtMG, this provision also requires one minor guilt and an Lack of public interest at law enforcement. With this provision, it can be decided on a case-by-case basis whether persecution is actually mandatory.
The defense attorney will therefore try to convince the public prosecutor or at the latest the court that a prosecution or punishment can be avoided.
Only minor punishment / probation / therapy requirement
If the evidence clearly speaks against the client and is ruled out to stop or apply the above rules, the defense lawyer will often try to get a small sentence. How this looks exactly depends on the individual case, of course:
- Fine instead of imprisonment (the goal is often that the client is subsequently considered to be "not a criminal record")
- Imprisonment that is suspended for probation (under certain circumstances with a corresponding therapeutic requirement - inpatient or outpatient)
- "Therapy instead of punishment" (§ 35 BtMG plays an important role here in particular)
At the end...
The right defense strategy and the definition of the defense target are essential tasks of the defender. The earlier he is involved in the process, the more options he will have.