Skandal-Urteil und rechtsstaatsfeindlicher Kampf gegen Drogen in Deutschland

Toilet inspections at Oktoberfest and the criminal proceedings surrounding the Munich club Rote Sonne raise fundamental questions about the limits of narcotics law. My criticism is directed against an expansion of criminal liability that makes club owners responsible for the actions of their patrons. Section 29, Paragraph 1, Sentence 1, No. 10 of the German Narcotics Act (BtMG) covers, among other things, providing or granting an opportunity for the unauthorized acquisition or distribution of narcotics. No. 11 specifically concerns providing or granting an opportunity for unauthorized consumption without a permit under Section 10a of the BtMG. These offenses must be distinguished. A blanket statement about "promoting drug use" does not replace an examination of the legal requirements. Mere inaction is insufficient. A typical or direct promotion of the activity covered by the offense is required. Otherwise, virtually any provision of everyday infrastructure would constitute criminal assistance. The very vagueness of the concept of "opportunity" necessitates a restrictive interpretation (MüKoStGB/Oğlakcıoğlu, 4th ed. 2022, BtMG § 29 para. 1397; BayObLG, 30.7.1982 – RReg 4 St 140/82, BayObLGSt 1982, 100). Therefore, operating a club and providing ordinary restrooms cannot simply be equated with the deliberate provision of premises for drug dealing or consumption. Anyone who makes premises available specifically to create favorable conditions for consumption may be committing an offense. However, this does not automatically make every operator liable to prosecution if guests consume drugs on their premises (MüKoStGB/Oğlakcıoğlu, BtMG § 29 Rn. 1461–1464; BGH, 16.9.1998 – 1 StR 482/98). Furthermore, knowledge of drug use does not replace the necessary facilitation. A host does not directly promote drug use simply by not excluding guests who have consumed drugs from future visits. Similarly, merely tolerating a roommate's drug use does not automatically constitute providing an opportunity for consumption (MüKoStGB/Oğlakcıoğlu, BtMG § 29 Rn. 1464, 1468; BayObLG, 30.7.1982 – RReg 4 St 140/82; OLG Hamm, 4.4.2002 – 3 Ss 209/02). I consider any further extension beyond § 13 of the German Criminal Code (StGB) to be misguided in these already broadly defined offenses. There are compelling dogmatic reasons for this. However, the rejection of such an extension in the case of No. 10 and the provision of an opportunity for consumption is a controversial position. Criminal liability for omission under No. 11 is not consistently excluded (MüKoStGB/Oğlakcıoğlu, BtMG § 29 Rn. 1398, 1463, 1464 with Fn. 3488; BayObLG, 27.5.2003 – 4St RR 47/03). Even if Section 13 of the German Criminal Code (StGB) is applied, a specific duty of care, a resulting obligation to act, and the equivalence of omission to active conduct must be established. Furthermore, the possibility of action, reasonableness, and corresponding attribution are required. The right to control access to the premises and the status of operator alone do not automatically establish comprehensive criminal liability for all actions of self-responsible guests. Section 29 para. 4 of the German Narcotics Act (BtMG) expressly covers negligent conduct under Nos. 10 and 11. However, negligence does not replace either the objective elements of the offense or a required duty of care. A conviction requires, in particular, a concrete breach of duty of care, foreseeability and avoidability, as well as individual culpability. Therefore, the mere absence of bag checks or un-sloped toilet seats does not, in itself, establish criminal liability. The scope of this liability for negligence must be critically limited, especially given the broad scope of the offenses (MüKoStGB/Oğlakcıoğlu, BtMG § 29 Rn. 1476). Article 103, Paragraph 2 of the German Basic Law (GG) prohibits analogy as a basis for criminal liability. Furthermore, the principles of proportionality, general freedom of action, freedom to choose one's profession, and equality must be considered. Expectations of criminal policy may not replace the statutory elements of an offense. Whether a specific judgment meets these requirements must be assessed based on its complete findings and reasoning. REUBEL GRUBWINKLER ATTORNEYS AT LAW The largest law firm in Germany specializing exclusively in criminal defense. A particular focus is placed on complex criminal trials and appeals in criminal law. We review judgments for substantive and procedural errors, develop appeal strategies, and substantiate substantive and procedural objections. This includes the legal review of the evaluation of evidence, sentencing, and procedural conduct. Our appeal work combines forensic experience with expertise in criminal law scholarship. Our team includes Prof. Dr. Christian Becker, Professor of Criminal Law and Criminal Procedure and commentator on the Munich Commentary on the German Criminal Code (StGB). Law firm and contact: https://www.rgra....