Germany: The BGH has overturned the acquittal of a man who smuggled 450 kilos of cannabis | Cannabis Law Report | How to buy Skittles Moonrock online
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Germany
Legal Tribune Online reports
The BGH (The Federal Court of Justice / Bundesgerichtshof – BGH ) overturned the acquittal of a man who smuggled 450 kilos of marijuana. The investigators had sneaked up on encrypted Encrochat messages. First, he benefited from the new cannabis legal situation.
A Judgment of the district court (LG) Mannheim caused huge excitement in April 2024 (Urt. V. April 12, 2024, Az. 5 KLS 804 Js 28622/21): A 36-year-old was acquitted of the illegal import of around 450 kilograms of marijuana with a total value of around 1.9 million euros. In addition, the LG had awarded him compensation for the “proven pre-trial detention”.
The public prosecutor had accused the man of smuggling large quantities of the drug from Spain to Germany several times in 2020. After evaluating encrypted chat messages that ran through the cryptohandy provider Encrochat, the investigators had gotten into trouble.
Due to the associated interference in the telecommunications secret protected by Art. 10 Basic Law (GG), Encrochat data may only be used as evidence if it is a matter of investigating particularly serious crimes and the requirements set out in the Code of Criminal Procedure (StPO) for an online search according to § 100b. Only then would the principle of proportionality be guaranteed, the Federal Court of Justice (BGH) ruled in March 2022.
Changed legislative assessment of cannabis imports
Background of the Mannheim acquittal: With regard to the illegal import of cannabis, with the entry into force of the Cannabis Act (CanG) or the Consumer Cannabis Act (KCanG) on the 1st April changed the legislative assessment. Not every trade in cannabis in no small quantities is considered such a serious crime that justifies an online search and thus the evaluation of Encrochat data. Section 100b (2) No. 5a of the Code of Criminal Procedure only provides for the possibility of an online search for crimes under Section 34 (4) of the KCanG, i.e. only in the case of a gang or armed crowd
In the Mannheim case, the man was not accused of these punishable, more likely to be attributed to organized crime, but “only” commercial trade with a not small amount, punishable under Section 34 (3) No. 1 and No. 4 KCanG. Suspected sentence: three months to five years in prison. Before the 1st Partial legalization, which came into force in April 2024, would have been sufficient to use the Encrochat data on the basis of the Narcotics Act (Section 29a (1) BtMG). Since the LG Mannheim asked the question of exploitation of the new, more liberal legal situation at the time the judgment was pronounced and not the time when the evidence was obtained before the 1st April 2024, acquitted the alleged dealer.
Prosecutor successfully with revision
The public prosecutor then appealed the judgment to the BGH and was now successful. The revision negotiation took place on Tuesday, and on Wednesday the 1st Criminal Senate made his decision.
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