Drug laws in Austria: the rules at a glance
(Click here to read this post in Dutch.)
This post provides a brief overview of the Austrian laws on addictive substances, or in other words drugs. Information on Austrian criminal procedure in general can be found here.
The Suchtmittelgesetz (SMG)
In Austria, the illegal use of drugs is primarily regulated in the Suchtmittelgesetz (SMG), or the Austrian Act on addictive substances. As a general rule, the illegal use of drugs is a criminal offence. The use is, with few strictly regulated exemptions (e.g. medical use) always illegal. The use – or more specifically the handling of drugs – is possible in different ways. As an example, the law mentions the acquisition, possession, the production as well as the import and export.
Contrary to popular belief in some circles, drugs in Austria are not tolerated or “legal in small amounts”. What is true is that, as far as “small-time” and addicted offenders are concerned, the law focuses on treatment more than it does on punishment (more on that below). Drug production and dealing – especially if done in large amounts – are actively prosecuted and regularly severely punished.
§ 27 SMG: illegal handling of drugs
The SMG makes an important distinction between the illegal use or handling or drugs on the one hand (§ 27 SMG) and drug dealing (§§ 28 and 28a SMG) on the other hand. §27 SMG renders the illegal handling of drugs punishable by law. The offender faces a prison sentence of up to one year or a fine.
The possible criminal penalty can be higher or lower depending on several factors:
If the drugs are exclusively intended for personal use, the maximum possible penalty is reduced to a six-month prison sentence or a fine;
Offering drugs on public transport or in public places can be punished with a prison sentence of up to two years;
If the handling of drugs (the dealing) is done commercially, i.e. with the intent to generate a steady income, this can be punished with a prison sentence of up to three years;
An adult offering drugs to minors may face a prison sentence of up to three years;
If the handling (or dealing) is committed as part of a criminal organization, the offender also faces a prison sentence of up to three years;
Commercial dealing or as part of a criminal association however carry a prison sentence of up to one year if the offender is addicted to drugs and committed his acts in order to acquire drugs for personal use.
Simply put: § 27 SMG punishes the “small-time” buyer or dealer. If the drugs concerned are exclusively intended for personal use or if the offender is addicted, this can lead to a lower maximum sentence.
§§ 28 and 28a SMG: drug dealing and preparation to deal
§§ 28 and 28a SMG govern the criminal liability of drug dealing, which is almost always punished more severely. The law speaks of drug dealing as soon as the amount of drugs handled exceeds a certain threshold amount (the Grenzmenge). This amount is defined in a separate ordinance, the so-called Suchtgift-Grenzmengenverordnung. As an example, the threshold amount for THCA is 40 grams; for heroin this is 3 grams.
The amount of drugs involved is as such, in a first step, important to determine whether an action constitutes drug dealing. An important consequence is that the offender will face higher possible penalties. If the threshold amount is exceeded by multiple times (15 or 25 times), this means he may face still higher penalties. In addition, the severity of a court´s actual sentence will depend on the amount of drugs involved.
Under § 28 SMG, the preparation of drug dealing alone is a criminal offence. Depending on different factors, the maximum penalty here can be between three and ten years in prison. For addicted offenders (see above), the maximum penalties are slightly lower with one to five years in prison. With preparation, the law means the production, acquisition, possession or transportation of drugs with the intent to bring these “onto the market”.
Drug dealing
§ 28a SMG punishes drug dealing itself. A person handling drugs in quantities exceeding the threshold amount (see above) may face a prison sentence of up to five years.
Here, too, several factors can however lead to different, especially higher maximum penalties:
A prison sentence of one up to 10 years is possible for “commercial” drug dealing, i.e. for persons engaging in drug dealing in order to generate a steady revenue stream and who have already been convicted for drug dealing once, for persons engaging in drug dealing as a member of a criminal association or if the amount of drugs involved exceeds the threshold amount at least 15 times;
A small reduction for addicted offenders (see above) applies here: for them, the maximum possible sentences are three to five years in prison.
A prison sentence of one up to 15 years is possible if a person has already been convicted for drug dealing once, now engages in drug dealing as a member of a criminal association, does so as part of a larger drug-related organization or if the amount involved is exceeds the threshold amount at least 25 times;
If someone engages in drug dealing as a part of a larger drug-related organization in a leading capacity, he may face a prison sentence of up to 10 or 20 years, or even a life sentence.
Psychotropic substances
The SMG contains similar rules for the illegal handling and dealing of substances that it calls psychotropic substances. These are substances listed in the UN Convention on Psychotropic Substances. A general difference is that the penalties here are somewhat lower.
Therapie statt Strafe – treatment instead of punishment
Austrian drugs policy emphasizes treatment for “small-time” and addicted offenders. The prosecution of persons apprehended with small amounts of drugs may be provisionally terminated with a probationary period and the requirement to take part in therapy. Addicted offenders may – insofar as they are not facing a prison sentence of more than five years – also be eligible to undergo treatment under certain conditions. More severe drug offences however remain subject to substantial criminal punishment.
International aspects of Austrian drug laws
Under certain conditions, persons can also be criminally prosecuted in Austria if they did not commit any criminal offence in Austria itself. This can for instance be the case where the offender imported drugs into Austria. More severe offences – i.e. especially dealing large amounts of drugs – are often considered to damage Austrian interests. A prosecution is then possible on basis of this assumption alone. Depending on the offence, this can mean receiving a summons to appear at a trial a hearing in Austria or even being extradited from one´s home country.
Some practical advice: persons facing extradition proceedings would do well to contact an Austrian lawyer as soon as possible. Foreign courts and lawyers in these proceedings often have only rudimentary information about the case itself. An Austrian lawyer can offer useful support here.
Legal guidance recommended
People facing criminal charges are urgently recommended to seek legal counsel as soon as possible. I offer my support and guidance in criminal procedures in Austria. Of course, I do so entirely in English. Feel free to contact me by using the form below, writing me at office@vastenburg.at or calling me at 0043 6804446590. General information on Austrian criminal procedure can be found here.
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