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Country Profile - Austria

Development=20 of legislation
Controlled=20 substances
Drug=20 use and possession
Trafficking=20 and drug-related crime
Prosecution=20 and practice
Prevention,=20 care and treatment
Precursors
Money=20 laundering and confiscation
New=20 developments
Links
References=

Development of Legislation

The=20 first major Austrian drug law was issued in 1951: the = =E2=80=98Narcotic=20 Drugs Act=E2=80=99. This text was amended in 1971, 1974, = 1977, 1980,=20 1985.

Already=20 in 1971 the Austrian drug legislation marked a clear = distinction=20 between criminals trafficking in drugs and persons with = drug-related=20 health problems as a dividing criteria in the prosecution of = drug=20 related cases. Nine years later in 1980, an amendment to the = law=20 affirmed for the first time the principle that would become = the=20 basis of the drug policy in Austria: =E2=80=98therapy = instead of=20 punishment=E2=80=99. The drug addict is a sick person who = commits drug law=20 and acquisitive offences to compulsorily obey his addiction. = He/she=20 must have the possibility of being cared for instead of = being=20 punished.

On 1=20 January 1998, the =E2=80=98Narcotic Substances Act=E2=80=99 = (Suchtmittelgesetz,=20 abbr. SMG) entered into force to replace the Narcotic Drugs = Act. The=20 new law represents the continuation of the Austrian drug = policy=20 approach already traced by the previous drug legislation, in = particular, perceiving the principle of therapy instead of=20 punishment. Therefore, it foresees severe sanctions for the = act of=20 sale or trafficking in narcotic drugs, now applied also to=20 psychotropic substances and to precursors, while a range of = measures=20 are in place to treat and rehabilitate drug addicts who have = committed an offence. With this law Austria joins its = European Union=20 partners by adopting entirely the current UN Drugs = Conventions not=20 completely ratified until this new text, and putting under = control=20 the substances listed in tables III and IV of the 1971 UN = Convention=20 and precursors listed in table I and II of the 1988=20 UN Convention.

Controlled = substances

All substances as defined by law are listed = in several=20 schedules introduced by three decrees covering respectively: =

narcotics (5 schedules);
psychotropic substances (1 schedule);
precursors (2 schedules).

Any=20 substance to be officially designated as a controlled drug = must be=20 included in one of the relevant decrees. Following this=20 classification, and with regard to possible sanctions and = penalties,=20 a distinction is made according to the = nature of the=20 substance when prosecuting drugs offences.

Drug use and = Possession

The consumption of controlled drugs is not = mentioned as=20 a specific offence by the Austrian law, however illegal = possession=20 of drugs is a crime.

Austrian drugs law makes a distinction between = possession of=20 drugs for personal use and possession for trafficking. = Criteria=20 taken into account in practice when prosecuting to divide = the two=20 illegal acts are:

the=20 quantity - small, large;
the=20 frequency of use by the person =E2=80=93 = occasional/regular;
the=20 nature of the substance.

Therefore whoever acquires, possesses, produces, = import,=20 exports, delivers or supplies drugs to somebody or to a = third person=20 can be sentenced to up to 6 months of prison or to = the=20 payment of a fine of up to 360 times the daily unit fine = (SMG art.=20 27 para.1). However the person will be sentenced to up to = three=20 years of prison if he/she has put a minor in a position of = using=20 (consuming) a drug and he/she is an adult and 2 years older = than the=20 minor; if the crime was committed with commercial purposes, = or if=20 the person is member of a criminal band. If the author of = these=20 crimes is in a state of drug addiction and he has committed = the=20 above mentioned crimes with the sole purpose of obtaining = the drug=20 or the means for acquisition of a drug exclusively for his = own=20 personal consumption, the sentence will be only up to 6 = months=20 of prison or the payment of a fine of up to 360 times = the daily=20 unit fine.

Article=20 28 (SMG) introduces the concept of = =E2=80=9Clarge quantity=E2=80=9D, as=20 dividing criteria between petty and serious offences. A = decree [1] adopted in 1997 introduced the so = called=20 =E2=80=9Clarge quantity=E2=80=9D for each drug expressed in = terms of the pure=20 substance such as: 20 g. of THC (active principle of = cannabis), 5 g.=20 of heroin, 15 g. of cocaine, 10 g. amphetamines, 30 g. MDMA, = MBDB,=20 MDE, etc. Recently an amendment to the law reduced the limit = quantity of heroin from 5 to 3 grams [2] .

Trafficking and drug related = crime=20

Offences under the SMG are production, acquisition, = possession, import, export, supply, and distribution of = substances.=20 It is the aim of the illegal act that determines its degree = of=20 punishment: for acquiring or possessing a large quantity of = drugs=20 with the intention of having it distributed the penalty will = be up=20 to 3 years; in case of production, import, export or = distribution of=20 large quantities of drugs, activities strongly connected to = the=20 concept of drug trafficking, the penalties will be up to 5 = years=20 (basic offence).

Penalties will be increased to between 1 and 10 = years when=20 the person acts commercially or as a member of a gang, and = between 1=20 and 15 years if he/she is a member of a gang with a previous = conviction for drug trafficking; member of a criminal gang = of more=20 than 10 people created to commit drug-trafficking offences; = or in=20 cases involving 25 times more than the 'large = quantity'. If=20 he/she is the leader of a drug-trafficking organisation, the = sentence will be between 10 and 20 years or = =E2=80=93 since an=20 amendment to the Narcotic Substances Act of 8 May 2001, = BGBl. I=20 51/2001 - lifelong .

Prosecution and judicial practice =

Police=20 have no discretion and must notify any offence discovered on = duty. [3] All criminal acts that Prosecutors = learn=20 about on duty have to be officially prosecuted, that means = there has=20 to be an official reaction. This can either be a diversion = from=20 prosecution or an official charge.

Scenario 1: possession of heroin for personal = use by an=20 adult offender.

When=20 questioned by the police the person admits to be a regular = user of=20 heroin and no other offences are involved. In this scenario = the=20 offender has acquired and possessed a small quantity of = drugs for=20 personal use, so the state prosecution, in accordance with = Art.=20 35(1) of the SMG asks the district authority as the = competent health=20 authority to give their opinion whether a health-related = measure for=20 the offender will be necessary. In addition the Austrian = Drug=20 Monitoring Agency (ANDMA), where a drug register with = personal data=20 is kept, is asked for information on the offender. =

If=20 according to the district authority it is necessary to adopt = health-related measures for the person in question, and if = the=20 offender is willing to undergo the necessary health-related = measure,=20 the state prosecution has to temporarily withdraw the report = for a=20 maximum probationary period of two years. Subsequently, the = offender=20 has to inform the state prosecution, at regular intervals, = about the=20 commencement and progress of the health-related measure, by=20 submitting pertinent certificates; if such confirmations are = provided regularly, after the probationary period of two = years the=20 report to the police, which has been withdrawn temporarily, = will be=20 permanently withdrawn, in accordance with Art. 90(1) of the = Code of=20 Criminal Procedure (CCP).

The=20 proceedings will have to be continued if the offender = persistently=20 refuses to undergo the health-related measure or if a = further=20 criminal act is committed in connection with drug = dependence. If =E2=80=93=20 during the period of probation =E2=80=93 there is a new = report of the=20 police, because the offender has once more possessed or = acquired a=20 small quantity for personal use, the prosecutor can waive=20 prosecution under certain conditions but he is no longer = obliged to=20 as for the first time (amendment BGBl. I = 51/2001).

Scenario 2: property crime committed by a drug = user to=20 finance her/his drug addiction The offender has been = previously=20 convicted for drug-related crimes. He is now accused = of having=20 snatched a handbag without using considerable violence and = the item=20 stolen has not been very valuable, so the offence has not = had=20 significant consequences. The offender is addicted to drugs = and has=20 committed the robbery to finance his addiction. In this case = the=20 offence has been committed in connection with drug = acquisition and=20 the offender is faced with a prison sentence of not more = than 5=20 years.

As the=20 suspect has confessed to this offence, the report = transmitted by the=20 prosecuting authority (i.e. the police force) to the state=20 prosecution is sufficient for direct indictment before a = criminal=20 court consisting of one judge and two lay judges, without = further=20 pre-trial investigations being carried out. This court = sentences the=20 defendant to one year of imprisonment because of a criminal = offence=20 under Art. 142(2) of the CC.

The=20 sentence is suspended for a period of two years. The = convicted=20 offender commits himself to undergo the necessary = health-related=20 measure. The court will have to revoke the suspension of = sentence=20 and execute it if the convicted offender does not undergo or = continue treatment in the long run, or if he is convicted = again in=20 connection with his dependence on narcotic drugs and = execution of=20 the prison sentence seems to be necessary to prevent him = from=20 committing further offences.

Scenario 3: small-scale distribution of drugs by = a drug=20 user to finance her/his drug addiction. =

The=20 offender is an adult previously convicted of drug-related = offences.=20 The suspect has confessed to selling heroin with a total = gross=20 weight of 150g and he is addicted to drugs. He committed the = offence=20 to finance his own drug dependence. Once again, as the = suspect has=20 confessed to the offence, the report transmitted by the = prosecuting=20 authority (i.e. the police force) to the state prosecution = is=20 sufficient for direct indictment before a criminal court = consisting=20 of one judge and two lay judges, without further pre-trial=20 investigations being carried out.

This=20 court sentences the suspect to two years of imprisonment = without=20 suspension for putting into circulation a large quantity of = narcotic=20 drugs according to Art. 28(2) of the SMG., and taking into=20 consideration the previous criminal records for the same = offences.=20 However, according to Art. 39(1) of the SMG the court, as an = obligation, shall suspend execution of a prison sentence for = a=20 violation of the SMG for a maximum period of two years, if = the=20 prison sentence in question is less than two years and the = convicted=20 offender is dependent on drug consumption and commits = himself to=20 undergo the necessary health-related measures. If the = convicted=20 offender successfully undergoes the health-related measures = during=20 the suspension period the court shall then suspend the = sentence and=20 fix a probationary period of at least one year and at most = three=20 years. The court will have to revoke the suspension of = sentence and=20 execute it if the convicted offender does not undergo or = continue=20 treatment, or if he is convicted again in connection with = his=20 dependence on narcotic drugs and execution of the prison = sentence seems to be necessary to prevent him from = committing=20 further offences.

Prevention, care and treatment

Criteria such as =E2=80=98prevention of = addiction=E2=80=99 and =E2=80=98substitution=20 treatment=E2=80=99 were introduced for the first time in = 1997 in the=20 Austrian drug law (SMG). In this context the options to = divert=20 drug-using offenders into treatment have been extended. =

The=20 public prosecutor is obliged to suspend proceedings for a=20 probationary period of two years if the person is charged = with=20 illegal acquisition or possession of a small amount of drugs = for=20 personal use. This is conditional on the opinion of the = health=20 authority that determines whether or not the offender needs=20 health-related measures. However if, during the period of=20 suspension, the person commits another crime foreseen in the = same=20 drug law, or a crime, by reason of his addiction, to obtain = the=20 drug, or if the person refuses to continue the therapeutic = programme=20 or the psychological counselling, normal prosecution takes = over. If=20 not, the case will be closed when the offender proves to the = public=20 prosecutor the successful conclusion of the programme. =

The=20 public prosecutor may waive proceedings without having = applied for=20 the opinion of the health authority if a person is = exclusively=20 charged with acquisition or possession of a small quantity = of=20 cannabis for his own personal use and there is no doubt that = no=20 health-related measure is necessary, and if there has not = been any=20 report of the police concerning this person due to the same = offence.=20

If the=20 person has been prosecuted and sentenced for a drug law = offence not=20 higher than 2 years the court is obliged to suspend the = execution of=20 the sentence if the person shows his will to undergo the = necessary=20 therapeutic treatment. If successfully concluded the penalty = has to=20 be reviewed. From the interpretation of the law and the = related=20 orders, the therapeutic treatment is not only based on the=20 abstention of the use of narcotics but also on substitution=20 treatment. In the case of drug addicts (e.g. possession of = small=20 quantity of heroin for personal use) a treatment is ordered = in about=20 50% of the cases concerning adults (about 90% in cases = concerning=20 juvenile delinquents); in the other cases diversion is = ordered=20 without treatment under the condition of a 2 year probation = period. The most commonly ordered treatment is = medical=20 surveillance. [4]

Precursors

The=20 bases of the control of trade, import, export and transit of = precursors are Regulation No. 3677/90/EEC as amended, and = Directive=20 92/109/EEC as amended. The provisions of Directive = 92/109/EEC were=20 implemented into national law within the Austrian act on = narcotics,=20 psychotropic substances and precursors (Suchtmittelgesetz, = SMG,=20 BGBl. I Nr. 112/1997) as amended which entered into force on = 1=20 January 1998, and within a national regulation on precursors = (Vorl=C3=A4uferstoffeverordnung, VorlV, BGBl. II Nr. = 376/1997), which=20 also entered into force on 1 January 1998.

Under=20 Art 21 of the SMG, substances may be confiscated if there is = a=20 violation of the requirements to avoid diversion to = production of=20 illicit narcotics and/or psychotropic substances. The penal=20 provisions of the SMG also cover wholesale trafficking in = precursors=20 in Art 32, allowing for up to two years' imprisonment for = purchase=20 or possession of precursors with the knowledge that it will = be used=20 to manufacture large quantities of narcotics and/or = psychotropic=20 substances, and five years' imprisonment for manufacturing,=20 importing, exporting or putting on the market a precursor, = with=20 similar knowledge. Breaches of licensing or documentation=20 requirements may result in an administrative fine of up to = 36=20 300.

The=20 Federal Ministry of Social Security and Generations is = competent to=20 keep the drug register, where, based on a legal obligation = on the=20 part of the police and the courts to disclose relevant = information,=20 data are centrally stored about persons reported in = connection with=20 violations of the SMG, including infringements concerning = the=20 precursors covered by the SMG.

The=20 Federal Ministry of Social Security and Generations = co-ordinates the=20 legal aspects of precursors control. The Federal Ministry of = Social=20 Security and Generations is further responsible, in close=20 co-operation with the Customs Authorities within the Federal = Ministry of Finance and the Police Authorities within the = Federal=20 Ministry of the Interior, for the control of the domestic = and=20 international trade in precursors. The Federal Ministry of = Social=20 Security and Generations issues licenses, registrations and = export=20 authorisations for precursors, and collects data for the = annual=20 reports on precursors to the European Commission and to the = United=20 Nations. The Police Authorities are responsible for = investigation of=20 illicit transactions involving precursors, and the Customs=20 Authorities are responsible for the control = of=20 external trade in precursors.

Money Laundering and Confiscation

Art.=20 165 and 278a of the Austrian Penal Code (BGBl n=C2=BA = 60/1974 amended by=20 federal law BGBl 527/1993 and BGBl I 153/1998 criminalise = the=20 laundering of all assets derived from serious offences - = smuggling=20 or evasion of import or export taxes (insofar as these fall = within=20 the competence of the courts) or disguising the origin = thereof -=20 particularly by giving false information in legal relations=20 regarding the origin or true nature of those property items, = etc.=20 Such offences shall be liable to imprisonment for a term of = up to=20 two years or a monetary fine of up to 360 daily rates. = Anyone who=20 knowingly acquires such property items, keeps them in safe = custody,=20 invests, administers, converts, realizes or transfers them = to a=20 third party shall also be punished. Anyone who commits the = act in=20 respect of a value in excess of =E2=82=AC36 300 or as a = member of a gang=20 associated for the purpose of continuous money laundering = shall be=20 punished by imprisonment for a term of six months to five = years.=20 Anyone who, acting on the orders or in the interests of a = criminal=20 organization, appropriates, holds in safe custody, invests,=20 administers, converts or turns to account parts of the = assets of=20 that organization, or transfers them to a third party, shall = be=20 punished by imprisonment for a term of up to three years or, = if the=20 act is in respect of a value exceeding =E2=82=AC36 300, by = imprisonment for=20 a term from six months to five years (art. = 278a para.=20 2).

New=20 developments

Since 1=20 June 2001 an amendment of the SMG is in force. The main = provision=20 included is an increased penalty for (organised) drug=20 trafficking up to lifelong imprisonment for leaders of = criminal=20 organisations in certain cases. Currently under discussion = (since=20 end 2000) is the legal framework for using cannabis for = medical=20 purposes. Already at the end of 1998, the Vienna City = Council=20 adopted a resolution on admitting cannabis for medical = purposes by=20 majority rule. In legal examination it was found that the = SMG only=20 prohibits all forms of consumption of the flowers and fruit = of the=20 plants belonging to the genus cannabis where the resin has = not been=20 extracted. The medical use of other cannabis products, = however, is=20 permitted. The decree on narcotic substances explicitly = mentions=20 delta-9-tetrahydrocannabinol, which is in pharmaceutical = use, as a=20 substance for which prescriptions may be issued (decree on = narcotic=20 substances, BGBl II 1997/374 annex IV). However, no = pharmaceutical=20 of this type has yet been admitted to the = Austrian=20 market.

Links

A complete database of Austrian legislation = is at http://www.ris.bka.gv.at/bgbl/

References

Text=20 revised by Mrs. Johanna Schopper

Report concerning the system of the Austrian Drug = Act 1997=20 and the Austrian Drugs Strategy, Christian Schnattler, 20 = October=20 1999;
=C3=96BIG=20 Reitox Austrian National Reports 1997- 2000;
ELDD=20 legal texts;
Study on the legislation and regulation on drug = trafficking=20 in the European Union Member States, European Commission=20 2001;

[1] (see ELDD at Verordnung der = Bundesministerin=20 f=C3=BCr Arbeit, Gesundheit und Soziales =C3=BCber die = Untergrenzen einer=20 gro=C3=9Fen Menge (Grenzmengen) bez=C3=BCglich der = Suchtgifte=20 (Suchtgift-Grenzmengenverordnung =E2=80=93 SGV=20 377/1997)

[2] = =E2=80=9CGrenzmengenverordnung=E2=80=9D (BGBl. II=20 145/2001)

[3] Foregger/Kodek, StPO^{7 =}=C2=A7 34 Anm=20 I.

[4] Prosecution of drug users in Europe: = varying=20 pathways to similar objectives, EMCDDA 2001

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