Narcotics criminal law.
From the first police findings through the house search and the formal charge to judgment by the lay-judges' court: proceedings under the Austrian Narcotic Substances Act (SMG) decide on liberty, driving licence, residence and everyday life. We defend from the very first interview to the appellate instance — with precision in threshold quantities, § 35 SMG diversion and the administrative consequences under driving-licence and aliens-police law.
Framework of the Narcotic Substances Act
The Austrian Narcotic Substances Act (Suchtmittelgesetz — SMG, Federal Law Gazette I No. 112/1997) governs the manufacture, placing on the market, acquisition, possession and transfer of narcotics, psychotropic substances and precursor chemicals. Consumption as such is not punishable; what is punishable is conduct upstream of consumption — in particular possession, acquisition and transfer. For the list of covered substances, the SMG refers to the Narcotics Ordinance (Suchtgiftverordnung — SV) and the Psychotropic Substances Ordinance (Psychotropenverordnung — PV); the pure-substance and threshold quantities are laid down in the Threshold Quantity Ordinance (Suchtgift-Grenzmengenverordnung — SGV). The offences cover classic controlled substances — cannabis, cocaine, heroin, amphetamine, MDMA, LSD — as well as new psychoactive substances, to the extent they have been added to the ordinance.
The criminal-law framework draws a sharp line between consumption-related conduct (§ 27 SMG) and trafficking in its various forms (§§ 28, 28a, 28b SMG). § 27 SMG punishes acquisition and possession below the threshold of the "excess quantity" with a sentencing range of up to one year of imprisonment; self-consumption itself is not punishable, but the upstream acts are. § 28 SMG covers the mere preparation of trafficking with a quantity exceeding fifteen times the threshold and carries a range of up to two years of imprisonment. The basic offence of drug trafficking under § 28a para. 1 SMG carries imprisonment from one to five years; the aggravated forms run up to fifteen years where the act is committed as a member of a criminal association in respect of a quantity exceeding twenty-five times the threshold.
The decisive measure for classification is the pure-substance quantity, not the gross weight of the seized product. For cannabis the threshold is 20 grams of delta-9-tetrahydrocannabinol (THC), for cocaine 15 grams of cocaine base, for heroin 3 grams of heroin base, for amphetamine 10 grams, for MDMA 30 grams. Since average street cocaine shows a purity of between 40 and 70 per cent, 15 grams of pure substance translate, depending on quality, into about 25 to 40 grams of commercial product. The forensic-chemical report — in most cases produced by the provincial criminal investigation office or the institutes of forensic medicine in Salzburg, Innsbruck or Vienna — therefore becomes the central piece of evidence on which the classification as a standard or aggravated trafficking offence stands or falls. The defence regularly starts at this point: checking the chain of custody, the representativeness of sampling, and objections to the calculation of the threshold-quantity multiples.
§ 27 SMG — personal use, possession and "small amount"
§ 27 para. 1 SMG punishes the acquisition, possession, production, transport and transfer of narcotics — by up to one year of imprisonment or a fine. A person acting exclusively for personal use, without exceeding the threshold quantity, falls under § 27 para. 2 SMG; the sentencing range is the same, but the proceedings are regularly open to a waiver of prosecution or diversion. The line to the "excess quantity" — the threshold to the trafficking offence in § 28 SMG — is drawn at fifteen times the threshold quantity; a person who remains below that line and acts solely for personal consumption is treated under the rules of consumer criminal law.
The actual defence work takes place at the boundary between personal use and intent to supply. The public prosecutor frequently infers intent to supply from circumstantial evidence: portioning into individual packages, possession of precision scales and cutting agents, seizure of larger amounts of cash, contacts in telecommunications records, witness statements from the user environment. Each of those indicators is open to challenge — individual packaging may serve a person's own portioning habits, scales may serve to check self-consumption and the prices paid. The Austrian Supreme Court (OGH) in decisions 13 Os 110/13s and 14 Os 50/16w requires a comprehensive assessment of all circumstances, not a mere summing-up of indicators. The defence therefore systematically works out which indicator speaks for personal use and which the prosecution over-interprets in its supply hypothesis.
A particular borderline case is the joint acquisition of narcotics by several users. A person who acquires narcotics jointly for himself and friends and splits the costs acts, according to the prevailing doctrine and settled OGH case law (most recently 15 Os 71/15a), within the ambit of consumption-related conduct and not of trafficking — as long as there is no intention of profit or economic advantage. This "consumers' procurement community" is in practice often reflexively charged as trafficking; the defence regularly achieves a reclassification to § 27 SMG with the corresponding milder sentencing range. At the same time, where a drug dependency is known, the switch to § 35 SMG (waiver of prosecution) and § 39 SMG (suspension of execution in favour of a health-related measure) must be examined — in many cases the best defence is therapy, not acquittal.
Trafficking, excess quantity and aggravated trafficking
Once the quantity exceeds fifteen times the threshold, the proceedings leave consumer criminal law and enter the law of trafficking. § 28 SMG punishes the mere preparation of placing narcotics on the market where the quantity exceeds fifteen times the threshold — covered is anyone who possesses narcotics for later transfer without yet having placed them on the market — with imprisonment of up to two years. § 28a para. 1 SMG is the basic offence of drug trafficking: a person who produces narcotics, places them on the market or transfers or procures them to another in a quantity exceeding fifteen times the threshold is threatened with imprisonment of one to five years. The offence is a successive and continuing offence; mere possession with intent to supply can suffice where the circumstantial evidence is strong enough.
The aggravated forms build on the basic offence. § 28a para. 2 SMG raises the range to one to ten years where the offence is committed on a commercial basis or as a member of a criminal association, provided fifteen times the threshold is involved. § 28a para. 4 SMG raises the range to one to fifteen years where the offence is committed at a quantity exceeding twenty-five times the threshold and, in addition, involves commercial commission or membership of a criminal association (§ 278 StGB — Austrian Criminal Code). § 28b SMG adds a qualification for offences committed against minors or in the vicinity of schools and youth facilities. Commercial commission within the meaning of § 70 StGB requires that the perpetrator act with the intention of providing himself, through repeated commission of the offence, with a continuous source of income — a single well-paid act does not suffice.
Procedurally, SMG offences in the first instance are decided, depending on the sentencing range, either by the single judge of the regional court (§ 28 SMG and § 27 para. 1 SMG where the mixed-bench threshold is not reached) or by the mixed bench (lay-judges' court) (§ 28a SMG, which carries a sentencing maximum of five years and above). Aggravated stages with a maximum of ten or fifteen years regularly end up before the mixed bench; the defence participates in its composition through the rights of challenge under §§ 43, 44 StPO. On the appellate route against judgments of the mixed bench, the appeal against sentence and the plea of nullity to the OGH under § 281 StPO are open; the deadlines are short (four weeks from service of the judgment) and the grounds of nullity are narrowly drawn. For the strategic options after a first-instance judgment see appeals.
§ 35 SMG diversion and health-related measures
A core element of the SMG is the health-related orientation towards consumers. Instead of pure prosecution, §§ 35 to 41 SMG provide a graduated system which removes consumers from criminal proceedings under conditions and channels them into medical assessment and, where appropriate, therapy. § 35 para. 1 SMG obliges the public prosecutor to withdraw provisionally from prosecution where a first-time consumer is concerned, the quantity does not exceed fifteen times the threshold, the fault is low, and the suspect submits to a health-related measure. The role of the health authority — in Salzburg the Federal Social Office and the district medical officer — is central; it conducts the assessment and proposes a health-related measure.
The health-related measure ranges from simple counselling by an institution of addiction support (Suchthilfe Salzburg, Caritas Kontaktladen, PSNÖ) through inpatient or outpatient withdrawal treatment up to substitution-based treatment for opioid dependency. The probation period under § 35 SMG is one to two years; within that period no further offence — in particular no further SMG offence — may be committed, otherwise prosecution may be resumed. A person who properly completes the measure receives a final withdrawal of prosecution; the offence remains visible to the judiciary in the internal criminal register but does not appear in the criminal record certificate issued to third parties.
Two further building blocks of the health-related route deserve to be highlighted. § 37 SMG allows the court, after an indictment has already been filed, to withdraw provisionally from prosecution where the fault is minor and similar conditions are met — thus opening the diversion route even at an advanced stage of the proceedings. § 39 SMG governs the suspension of execution of a custodial sentence in favour of health-related measures: a person sentenced to imprisonment of up to three years who suffers from a drug dependency can suspend the commencement of serving sentence in order to undergo therapy; on successful completion, the remaining sentence can be conditionally remitted. This procedural switch is strategically so significant that it must be considered early in every SMG case — long before the main hearing — because medical reports and therapy places require time.
House search, seizure and pre-trial detention in SMG proceedings
The most common entry point into an SMG case is the house search under § 119 StPO (Austrian Code of Criminal Procedure). In principle it requires a judicial order on the application of the public prosecutor; where there is imminent danger — in the SMG context typically the imminent destruction of evidence — the criminal police may search without a judicial warrant but must obtain judicial authorisation subsequently within seventy-two hours. The defence reviews the order, the protocol and the conduct of the search step by step: was the reason for suspicion sufficiently substantiated? Was the suspect informed before the start of the search and given the opportunity to involve defence counsel? Were third parties (flat-mates, landlords) handled correctly? Defects at these steps can render the evidence obtained inadmissible under § 166 StPO.
Seizure and attachment under §§ 110 et seq. StPO cover not only the narcotics found, but regularly also mobile phones, laptops, cash, data carriers and vehicles. The search of a mobile phone is subject to its own limits — the OGH in decision 14 Os 140/22b has clarified that a suspicionless evaluation of the entire contents is disproportionate and that a targeted evaluation related to concrete indicators of suspicion is required. Seized cash is, in addition, subject to asset recovery under §§ 20 et seq. StGB (forfeiture and extended forfeiture); the prosecution must show the connection with drug trafficking, and the defence can prove a lawful origin (pay slips, account statements, deeds of gift).
In aggravated drug trafficking — in particular where the trafficking quantities are a multiple of the threshold — pre-trial detention under § 173 StPO comes to the fore. The grounds of risk of flight, collusion and further commission are regularly asserted in packed formulations in SMG proceedings; risk of further commission is the typical ground for detention in commercial trafficking. Defence counsel can, already before the detention hearing, bring forward concrete circumstances against the respective ground — a secured housing and work situation, family ties, readiness for a health-related measure as an alternative to detention. Less intrusive means under § 173 para. 5 StPO — such as electronically monitored house arrest as a substitute for detention — are quite conceivable in SMG cases where a therapy perspective is credibly underpinned. For the related custodial-law questions and the interaction with sentence execution see haftrecht.at.
Consequences beyond the sentence: driving licence, residence, criminal record
An SMG conviction produces effects well beyond the sentence itself. The traffic-law dimension regularly arises first: a person stopped at a traffic check while under the influence of narcotic substances (§ 5 para. 1 StVO in conjunction with § 14 FSG — Austrian Driving Licence Act) loses the driving licence as a rule for at least four months on mild impairment, for longer on more severe impairment or on a repeat offence. Even without a concrete driving incident, a final SMG conviction frequently triggers an administrative fitness check under § 24 FSG, combined with a traffic-psychological assessment, urine and hair analysis and a refresher course. Regaining the licence costs time and money — several thousand euros is the norm. For the criminal-law side of the traffic check and its interaction with administrative proceedings see traffic offences.
For third-country nationals an SMG conviction is particularly severe. Under §§ 52, 53 FPG (Austrian Aliens Police Act) the Federal Office for Immigration and Asylum (BFA) regularly issues a return decision with an entry ban on a final finding of an SMG offence; where drug trafficking involves a quantity exceeding fifteen times the threshold, the entry ban under § 53 para. 3 no. 5 FPG is to be set at ten years as a mandatory minimum and may be extended up to an unlimited duration. For Union citizens the milder regime of § 67 FPG applies, with residence bans on a prognosis basis. Defence in SMG criminal proceedings must therefore take the residence-law dimension into account from the outset — a favourable classification as personal use rather than trafficking can make the difference between a ten-year entry ban and a mere interview by the aliens police.
Entry in the criminal record follows every final conviction; entries are expunged after the limitation periods of the 1972 Expungement Act. The period begins with the end of sentence execution and is five, ten or fifteen years depending on the sentence. Employers whose professional activity requires a criminal record certificate — health-care and nursing professions, work with children and youths, security services, banking — regularly see the conviction with substantial repercussions during the expungement period. Business authorisations, too, can be withdrawn or refused under § 13 GewO (Austrian Trade Act) on a relevant conviction. The defence therefore works on two levels: in criminal law, on the lowest possible sentence and the mildest possible classification (§ 27 rather than § 28a SMG); in ancillary law, on damage limitation for driving licence, residence and criminal record. Where offences with a pecuniary connection are involved — acquisition crime, theft or fraud to finance consumption — the rules on property crimes also need to be kept in view.
What we advise on in detail.
Personal use and threshold quantities under § 27 SMG
Possession and acquisition for personal use fall under § 27 SMG (Austrian Narcotic Substances Act). Decisive are the pure-substance quantities defined in the Threshold Quantity Ordinance (SGV) — 20 grams of THC for cannabis, 15 grams of cocaine base, 3 grams of heroin base — and their multiples for the aggravated offences. The distinction between personal use and trafficking is the key battleground in any SMG defence.
§ 35 SMG — therapy rather than punishment
Waiver of prosecution and provisional withdrawal of prosecution (§§ 35, 37 SMG) for consumers and small-quantity suspects. Requirements, role of the health authority, health-related measure, probation period of one to two years, and consequences of a repeat offence — including the suspension of execution in favour of therapy under § 39 SMG.
House search, seizure and suspect rights
Requirements for the judicial search order under § 119 StPO (Austrian Code of Criminal Procedure), search where there is imminent danger of loss, seizure and attachment under §§ 110 et seq. StPO. Suspect rights under § 49 StPO, the duty to inform about the right to silence and to counsel, and the admissibility of evidence obtained unlawfully.
Trafficking, excess quantity and aggravated trafficking
The framework of §§ 28, 28a, 28b SMG — from mere holding of narcotics with intent to sell through the standard case of drug trafficking up to fifteen and twenty-five times the threshold quantity. Sentencing ranges from one to fifteen years of imprisonment, aggravated forms for commercial commission and membership of a criminal association.
Drugs at the wheel — criminal law and licence withdrawal
Interaction between § 5 para. 1 StVO (driving in an impaired condition), § 14 FSG (Austrian Driving Licence Act) and § 27 SMG. Course of the medical fitness examination, minimum withdrawal periods, refresher courses and traffic-psychological assessment, and the link with ongoing SMG investigations.
Residence consequences for third-country nationals
SMG convictions regularly lead to return decisions and entry bans under §§ 52, 53 FPG (Austrian Aliens Police Act) for non-EU citizens. Prognosis decision of the BFA (Federal Office for Immigration and Asylum), duration and proportionality of the entry ban, and the significance of the conviction for asylum and naturalisation proceedings.
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Traffic offences
Negligent bodily harm, hit-and-run, drunk driving, vehicle liability. Connection with licence revocation and administrative proceedings.
Property crimes
Fraud, theft, embezzlement, money laundering — classification, defence strategy and restitution as mitigation.
Appeals
Appeal, plea of nullity, retrial, constitutional complaint. Strategic decisions after the first-instance judgment.
SMG notice, house search or indictment?
In narcotics proceedings the first weeks — and every detail in the file — decide the outcome. Call us early, before you attend an interview. Callback within one business day.
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