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.