The importation of narcotics into Germany is a serious offense under Section 30(1) No. 4 of the German Narcotics Act (BtMG), punishable by long prison sentences. However, not everyone involved in organizing or facilitating such an importation can automatically be considered a co-perpetrator. The Federal Court of Justice (BGH) has clarified in several rulings, including the decision of August 27, 2024 (5 StR 159/24), under which conditions a person can be convicted as a co-perpetrator or merely as an instigator in cases of drug importation.
Co-perpetration vs. Instigation: A Key Distinction in Narcotics Law
Drug trafficking cases often involve complex networks of actors, including those who procure the drugs, couriers who transport them, and others who organize their distribution domestically. To justify a conviction as a co-perpetrator under Section 25(2) of the German Penal Code (StGB), certain criteria must be met that go beyond merely arranging or facilitating the import.
Requirements for Co-perpetration
Co-perpetration occurs when a participant’s contribution shapes the crime to such an extent that they hold de facto control over its execution, or at least demonstrate the intent to do so. This does not mean the accused must physically transport the narcotics themselves, but their involvement must be decisive in the planning and execution of the act. Key factors include:
- The degree of personal interest in the success of the crime: The participant must have a strong stake in the crime’s success.
- Influence over the planning and preparation: The co-perpetrator must play a significant role in organizing the act.
- Extent of involvement: The contribution must be substantial and not merely incidental.
- Control or the intent to control the execution: The individual must be able to influence the outcome of the crime or at least demonstrate the will to do so.
Mere Facilitation is Insufficient
The BGH has made it clear that simply facilitating or arranging an importation is usually not enough to establish co-perpetration. It is insufficient to hire a courier or handle logistics if the accused has no direct influence over the import itself. In the 5 StR 159/24 case, the accused had arranged the drug imports but exerted no direct control over the actual transport, which was carried out by others. Since he had no control over the border crossing of the narcotics, the BGH overturned his conviction for co-perpetration and instead found him guilty of instigation.
Legal Significance of Instigation
The distinction between co-perpetration and instigation is crucial in narcotics law. While co-perpetrators are considered full participants and face the same penalties as primary offenders, instigators often receive more lenient sentences. Instigation occurs when someone incites another person to commit a crime without being directly involved in the execution. This was the case in 5 StR 159/24: the defendant had arranged for the couriers to transport the drugs into Germany but had no direct involvement in the act itself.
Importance of Evidence
The BGH’s ruling highlights the necessity of precise evidence in drug importation cases. It must be clearly established whether the defendant exercised significant control over the execution of the import or whether their role was limited to mere planning and organization. The latter generally leads to a conviction for instigation, not co-perpetration.
Conclusion
The BGH’s case law sets high standards for establishing co-perpetration in narcotics importation cases. To be convicted as a co-perpetrator, a participant must not only be involved in the planning and organization but also exert significant control over the execution of the crime. Simply arranging or hiring couriers is insufficient. This distinction has significant implications for sentencing and requires careful examination and evidence in each case.
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