The Austrian Narcotic Substances Act (Suchtmittelgesetz – SMG) regulates the handling of substances that may cause addiction or endanger health. Many people automatically associate this law with severe penalties, crime and illegality. In reality, however, it adopts a comparatively differentiated approach. Its purpose is not only to combat illegal drug trafficking, but above all to protect public health and to support individuals suffering from addiction. For this reason, the Narcotic Substances Act affects far more people than is often assumed – from consumers and relatives to medical professionals.
What does the Narcotic Substances Act regulate?
Fundamentally, the Act determines which substances qualify as narcotic substances and how they must be handled. It distinguishes between narcotic drugs, psychotropic substances and precursor chemicals (§ 1 SMG). In practice, cases most commonly concern narcotic drugs such as cannabis, cocaine, heroin, MDMA (ecstasy, molly), amphetamine (speed), methamphetamine (crystal meth), LSD (acid), and others.
§ 27 SMG – Unlawful Handling of Narcotic Drugs in Austria
Section 27 of the Austrian Narcotic Substances Act covers the unlawful handling of narcotic drugs, even where they are intended exclusively for personal use. In practice, this provision constitutes one of the most frequent starting points for criminal investigations in the field of drug law.
Elements of the offence and penalties for personal use
Under § 27 SMG, the handling of narcotic drugs is generally punishable, irrespective of any intention to make a profit. Contrary to a widespread misconception, there is no exempt “minimum quantity”. Even small amounts of so-called “soft” drugs such as cannabis or ecstasy, or hallucinogens such as LSD, are illegal in Austria. Without official authorisation, any handling of narcotic drugs is unlawful. “Handling” within the meaning of the Act includes acquisition (whether by purchase or free transfer), possession, production, transport, import and export, as well as offering, supplying or procuring narcotic drugs.
Although consumption itself is not explicitly criminalised, virtually any conceivable consumption involves (punishable) possession of the substance. The cultivation of opium poppy, coca plants or cannabis plants, as well as psilocin-, psilocin- or psilocybin-containing mushrooms for the purpose of producing narcotic drugs, is likewise punishable. The penalty under § 27 para. 1 SMG is:
- imprisonment of up to one year, or
- a fine of up to 360 daily penalty units.
However, if the offence under § 27 para. 1 SMG is committed exclusively for personal use, the penalty is:
- imprisonment of up to six months, or
- a fine of up to 360 daily penalty units.
Personal use therefore does not render the conduct exempt from punishment, but it significantly influences the legal assessment and the manner in which proceedings are conducted or concluded.
Significance of the “small quantity” and threshold quantity
A key issue in applying § 27 SMG is whether a small quantity is involved and whether the so-called statutory threshold quantity has been exceeded. The decisive factor is not the total weight of the drugs, but the quantity of pure active substance. The threshold quantities for the respective active substances are laid down in statutory provisions and relevant regulations in a tabular format. The distinction between “soft” and “hard” drugs is effectively based on the quantity of pure active substance. The more dangerous a substance is considered by the legislature, the lower the defined threshold quantity.
Whether the threshold quantity is undercut or exceeded is particularly relevant because it determines whether § 27 SMG applies or whether a more serious drug offence under §§ 28 or 28a SMG must be considered.
Provisions under § 27 paras. 2–4 SMG
Paragraphs 2 to 4 of § 27 SMG contain provisions covering cases in which the threshold quantity is not exceeded, but certain conduct triggers stricter penalties, for example supplying or offering narcotic drugs in public places or to minors.
Diversion as a statutory response
Section 27 SMG frequently allows – particularly in the case of first-time offenders – the possibility of diversion, i.e. a conditional or final discontinuation of prosecution. The focus lies not on punishment but on preventive and health-related measures. The public prosecutor’s office or the court may, under certain conditions, refrain from prosecution, particularly where the offence is connected with personal drug use and no aggravating circumstances are present. In practice, measures may include:
- medical examination,
- counselling sessions,
- therapeutic measures.
If the imposed conditions are fulfilled, the criminal proceedings may be definitively discontinued. Whether and under which conditions this specific form of diversion under drug law is granted always depends on the circumstances of the individual case.
Narcotic Substances Act and distinction from more serious offences
Of considerable practical importance is the distinction from offences relating to (the preparation of) drug trafficking under § 28a SMG (§ 28 SMG). If there is suspicion that the threshold quantity has been exceeded – even without intent to profit – §§ 28 or 28a SMG generally apply instead of § 27 SMG. These provisions carry significantly higher penalties, in some cases up to 15 years’ imprisonment. Allegations under §§ 28 and 28a SMG are also frequently accompanied by arrest and the imposition of pre-trial detention.
The Narcotic Substances Act is multifaceted and complex. Numerous particularities arise from established case law of the higher courts. A careful analysis of the allegations and the evidential situation is therefore essential. Under no circumstances should statements be made to the criminal investigation police without prior legal advice.
Practical defence considerations
Crucial decisions are often made at an early stage of the investigation. Statements to investigative authorities, the classification of the seized quantity, other evidential findings, the individual’s drug history and the issue of personal use play a central role.
Early criminal defence advice can be decisive in preserving the requirements for diversion and in avoiding unnecessary or severe criminal consequences.
Criminal investigation under the Narcotic Substances Act? Secure strong defence at an early stage.
If you or a person close to you is under investigation for an offence under the Narcotic Substances Act, obtaining early and qualified legal advice is of decisive importance. MPW Rechtsanwälte have extensive experience in defending drug-related criminal proceedings and support clients from the initial stage of investigation through to the conclusion of the case.
Timely contact makes it possible to safeguard your rights, avoid ill-considered statements and work strategically towards diversion or the most favourable possible resolution of the proceedings.
Summary
Section 27 SMG criminalises the unlawful handling of narcotic drugs, while at the same time providing differentiated responses within Austrian drug criminal law. The specific applicability depends largely on the individual circumstances of the case, in particular the quantity involved, the intended purpose and the manner of commission.
Contact usFAQ: Frequently Asked Questions about the Narcotic Substances Act in Austria
The Narcotic Substances Act defines which substances qualify as narcotic substances and regulates how they may be handled. In addition to criminal prosecution, it expressly pursues public health and preventive objectives and affects not only dealers but also consumers.
The Act distinguishes between narcotic drugs, psychotropic substances and precursor chemicals. In practice, it primarily concerns substances such as cannabis, cocaine, heroin, MDMA, amphetamines, methamphetamine, LSD, as well as certain plants and fungi.
Possession of narcotic drugs is punishable even if it is intended exclusively for personal use. Austrian law does not provide for any legally permitted minimum quantity.
The mere consumption of narcotic drugs is not expressly criminalised. However, since consumption generally presupposes prior possession or acquisition, in practice there is almost always a punishable handling of narcotic drugs involved.
The term is broadly defined and includes, among other things, acquisition, possession, production, cultivation, transport, import and export, as well as offering or supplying narcotic drugs.
Anyone who acquires or possesses narcotic drugs exclusively for personal use faces a penalty of imprisonment of up to six months or a fine of up to 360 daily penalty units. Personal use does not render the conduct exempt from punishment, but it may result in a reduced penalty range or in a discontinuation of prosecution.
The decisive factor is not the gross total weight of the drugs, but the quantity of the expressly prohibited active substance contained within them. The threshold quantity is defined by statute and by regulation.
Yes. In particular in cases of a first offence and where the conduct is connected to personal use, proceedings may be dealt with by way of diversion or discontinued, for example subject to conditions such as counselling or a medical examination.
