Drug possession in Germany: where personal use ends and trafficking begins

§ 2 Abs. 1 KCanG prohibits dealing with cannabis in principle. § 2 Abs. 3 KCanG takes individual cases out of that prohibition for adults, among them possession under § 3 KCanG and private cultivation for one's own use.

Under § 3 Abs. 1 KCanG, adults may possess up to 25 grammes of cannabis for their own consumption. For flowers, leaves close to the flowers and other plant material, the weight refers to the state after drying. At the residence or habitual abode, § 3 Abs. 2 KCanG allows up to 50 grammes and no more than three living cannabis plants.

Above these figures the statute draws a further distinction. Under § 36 Abs. 1 Nr. 1 KCanG it is a regulatory offence if someone possesses more than 25 and up to 30 grammes at a place that is not their residence or habitual abode, or more than 50 and up to 60 grammes in total. Only above that does criminal liability begin: § 34 Abs. 1 Nr. 1 KCanG covers the possession of more than 30 grammes away from the place of residence, of more than 60 grammes in total, and of more than three living plants. § 34 Abs. 1 Nr. 2 KCanG also makes it an offence to cultivate more than three plants at the same time or to cultivate at all other than for one's own consumption. The sentencing range of § 34 Abs. 1 KCanG is imprisonment of up to three years or a fine.

The zone between regulatory offence and criminal offence is often overlooked. It decides whether a regulatory fine procedure or a criminal investigation is running.

The nicht geringe Menge, the quantity that is not a small one, is the point at which the sentencing range shifts markedly.

Under § 29a Abs. 1 BtMG, imprisonment of not less than one year is imposed on a person over 21 years of age who without authorisation supplies narcotics to a person under 18, administers them to that person or leaves them to that person for immediate consumption (number 1), or on anyone who without authorisation trafficks in narcotics in a quantity that is not a small one, produces or supplies them in such a quantity, or possesses them in such a quantity without having obtained them on the basis of a permit under § 3 Abs. 1 BtMG (number 2). The requirement in number 1 relating to the offender is not a side issue: someone who supplies the narcotics and is not older than 21 does not fall under that provision. In less serious cases the range under § 29a Abs. 2 BtMG is three months to five years. § 30 Abs. 1 BtMG provides for imprisonment of not less than two years, among other things for unauthorised importation in a quantity that is not a small one and for acting as a member of a gang; less serious cases carry three months to five years under § 30 Abs. 2 BtMG. Finally, § 30a Abs. 1 und 2 BtMG provides for imprisonment of not less than five years, for instance for gang trafficking in a quantity that is not a small one and for carrying a firearm; in less serious cases § 30a Abs. 3 BtMG provides for six months to ten years.

For cannabis, § 34 Abs. 3 Nr. 4 KCanG names the quantity that is not a small one as a standard example of a particularly serious case, with a range of three months to five years. § 34 Abs. 4 KCanG provides for imprisonment of not less than two years for more serious variants, and three months to five years in less serious cases.

What matters is what appears in none of these statutes: a figure. Neither the BtMG nor the KCanG lays down when a quantity is not a small one. The courts determine that on the basis of the quantity of active substance, and the values differ from substance to substance; for cannabis the question is still in motion under the KCanG. Tables with gramme figures found online therefore reproduce case law, not statutory text. Whether a quantity falls below the threshold can only be assessed once the active substance content has been examined.

Anyone convicted of an offence committed on account of a narcotics dependency can obtain a deferral of the enforcement of the sentence under the conditions of § 35 Abs. 1 BtMG if they are in treatment or undertake to enter treatment. The statute names for this a custodial sentence of not more than two years; the deferral is limited to two years at most. Under § 36 Abs. 1 BtMG the time spent in the institution, once evidenced, is credited against the sentence until two thirds of the sentence have been served.

Something found in a car regularly brings a second set of proceedings with it, and a separate provision applies to cannabis in that context. Under § 24a Abs. 1a StVG (the Straßenverkehrsgesetz, the German Road Traffic Act), a person commits a regulatory offence who intentionally or negligently drives a motor vehicle on the road although they have 3.5 ng/ml or more of tetrahydrocannabinol in their blood serum. That value appears in this form in the statute. For other intoxicating substances, § 24a Abs. 2 StVG applies in conjunction with the annex to that provision; that annex does not list cannabis or tetrahydrocannabinol, but heroin, cocaine, amfetamine, the designer amfetamines named there and metamfetamine. Anyone who has also been drinking alcohol or sets off under its influence falls under § 24a Abs. 2a StVG. The regulatory fine can amount to up to 3,000 euros in the cases relevant here, subsections 1a and 2 sentence 1, and up to 5,000 euros in the cases of subsection 2a (§ 24a Abs. 3 StVG). If it is added that someone was unable to drive the vehicle safely as a result of intoxicating substances, § 316 StGB applies, with imprisonment of up to one year or a fine; negligent commission is covered as well.