The Federal Court of Justice (BGH) ruled in its decision of 11 June 2024 (ref. 3 StR 158/24) discussed the criminal assessment of cannabis trafficking in the light of the new Consumable Cannabis Act (KCanG). This decision clarifies in particular the application of the KCanG to cases of gang-related cannabis trafficking as well as the new regulations in comparison to the Narcotics Act (BtMG).
Facts
In the present case, the defendant was convicted of aiding and abetting gang-related trafficking in a not insignificant quantity of narcotics. He had agreed to help with the packaging and delivery of marijuana. The Mainz Regional Court sentenced him to a total prison sentence of six years. The appeal led to a partial change in the verdict, as the new Consumer Cannabis Act (KCanG) was more favorable to the defendant in this case.
Key statements of the BGH on the application of the KCanG
- Reassessment of the penalty range:
The BGH emphasizes that after the KCanG comes into force on April 1, 2024, the handling of marijuana will be subject to the provisions of the Consumption Cannabis Act. The new legal situation is to be examined in the context of a concrete overall comparison in accordance with Section 2 paragraph 3 of the Criminal Code to be applied if it is more advantageous for the accused. In the case of gang trafficking in cannabis, the KCanG provides for a lower minimum sentence than the Narcotics Act (BtMG). This makes the application of the new law more advantageous for the accused. - Differentiation of the offences under the KCanG and BtMG:
The KCanG adopts the structure of the BtMG in many respects, but differentiates in its application to specific actions. The BGH makes it clear that a cannabis courier cannot be convicted under the KCanG for acquiring, receiving, obtaining or dispensing if he merely acts as a messenger without his own power of disposal over the cannabis. This distinction corresponds to the principles of previous case law on the BtMG. - Non-punishable quantities and possession rules:
The KCanG introduces new regulations that define the quantities and conditions of possession of cannabis that are exempt from punishment. A cannabis courier who does not have free power of disposal over the cannabis in his internal relationship with his client only fulfills the offense of possession, but not the more serious offenses of acquisition or distribution.
Consequences of the decision
This decision by the Federal Court of Justice highlights the need to apply the new Consumption Cannabis Act when assessing cannabis offenses. The KCanG sets lower penalties and allows for a differentiated assessment of offenses related to the trade and possession of cannabis. The basic structure of the Narcotics Act remains intact, while the specific provisions of the KCanG must be adapted to the respective offenses.
Latest articles by Attorney Jens Ferner (Specialist in IT & Criminal Law) (Show all)
