Country profiles

Country Profile - Austria

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

Development of Legislation

The first major Austrian drug law was issued in 1951: the ‘Narcotic Drugs Act’. This text was amended in 1971, 1974, 1977, 1980, 1985.

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

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

Controlled substances

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

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

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

Drug use and Possession

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

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

• the quantity - small, large;
• the frequency of use by the person – occasional/regular;
• the nature of the substance.

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

Article 28 (SMG) introduces  the concept of “large  quantity”, as dividing criteria between petty and serious offences. A decree [1] adopted in 1997 introduced the so called “large quantity” for each drug expressed in terms of the pure substance such as: 20 g. of THC (active principle of cannabis), 5 g. of heroin, 15 g. of cocaine, 10 g. amphetamines, 30 g. MDMA, MBDB, 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

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

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

Prosecution and judicial practice

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

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

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

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

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

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

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

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

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

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

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

Prevention, care and treatment

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

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

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

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

Precursors

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

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

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

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

Money Laundering and Confiscation

Art. 165 and 278a of the Austrian Penal Code (BGBl nº 60/1974 amended by federal law BGBl 527/1993 and BGBl I 153/1998 criminalise the laundering of all assets derived from serious offences - smuggling or evasion of import or export taxes (insofar as these fall within the competence of the courts) or disguising the origin thereof - particularly by giving false information in legal relations regarding the origin or true nature of those property items, etc. Such offences shall be liable to imprisonment for a term of up to two years or a monetary fine of up to 360 daily rates. Anyone who knowingly acquires such property items, keeps them in safe custody, invests, administers, converts, realizes or transfers them to a third party shall also be punished. Anyone who commits the act in respect of a value in excess of €36 300 or as a member of a gang associated for the purpose of continuous money laundering shall be punished by imprisonment for a term of six months to five years. Anyone who, acting on the orders or in the interests of a criminal organization, appropriates, holds in safe custody, invests, administers, converts or turns to account parts of the assets of that organization, or transfers them to a third party, shall be punished by imprisonment for a term of up to three years or, if the act is in respect of a value exceeding €36 300, by imprisonment for a term from six months to five years (art. 278a para. 2).

New developments

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

Links

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

References

Text revised by Mrs. Johanna Schopper

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