While Section 27 of the Austrian Narcotic Drugs Act primarily covers the unauthorized handling of narcotics for personal use, (the preparation of) narcotics trafficking under Sections 28 and 28a SMG concerns those cases in which the handling of narcotics exceeds the so-called threshold quantity. The focus is therefore no longer on consumption, but on the distribution of qualifying quantities of narcotics, for which the legislator provides for higher penalties.
In criminal law practice, these provisions are among the most serious offenses under narcotics law and are regularly accompanied by significant coercive measures in criminal proceedings, such as house searches, telephone surveillance, arrests, and pretrial detention, as well as substantial prison sentences.
Significance of the threshold quantity as a key distinguishing criterion
The key factor for the applicability of Sections 28 and 28a SMG is exceeding the so-called threshold quantity (Section 28b SMG). The decisive factor is not the total weight of the seized substance, but the quantity of pure substance contained therein of the respective active ingredient classified as a narcotic. The respective threshold quantities are specified in the Narcotics Threshold Quantities Ordinance.
Note: Trading in the drug commonly known as ketamine (“Keta”) is not (currently) punishable under the SMG, but under the New Psychoactive Substances Act (NPSG).
If this threshold quantity is exceeded, it is generally no longer a case covered by Section 27 SMG. Instead, the more serious offenses (of preparation) of drug trafficking apply, which carry significantly higher penalties.
Section 28
Section 28 SMG covers preparatory acts. Anyone who acquires, possesses, or transports narcotics in quantities exceeding the threshold amount is already liable to prosecution if this is done with the intention of placing the narcotics on the market. The basic penalty is imprisonment for up to three years. If the quantity seized increases to a multiple of the threshold quantity, specifically to more than fifteen times the threshold quantity, the law refers to a “large quantity,” which carries a penalty of up to five years’ imprisonment.
Further aggravating circumstances apply if the offense is committed as a member of a criminal organization. In such cases, the penalty ranges from one to ten years’ imprisonment.
§ 28a SMG
Section 28a of the SMG covers cases in which a quantity of narcotics exceeding the threshold amount is not merely acquired, possessed, or transported, but is produced, imported or exported across national borders, or offered, transferred, or procured for another person. Although one might assume that production and import and export across national borders would constitute preparatory acts for narcotics trafficking under Section 28 SMG, these acts actually already fall under narcotics trafficking under Section 28a SMG.
According to Section 28a SMG, anyone who produces, imports, exports, or offers, transfers, or procures narcotics (in quantities exceeding the threshold amount) is therefore liable to prosecution. Even the basic offense under Section 28a (1) SMG is no longer a misdemeanor but a felony, for which the law provides for a prison sentence of up to five years.
The penalty increases if qualifying circumstances apply, such as commercial commission of the offense together with prior distribution pursuant to Section 28a SMG, commission of the offense within the framework of a criminal organization, or commission of the offense in relation to a quantity exceeding fifteen times the threshold quantity (“large quantity”). In these cases, the penalty ranges from one to ten years’ imprisonment.
If the offense involves a particularly large quantity, defined as twenty-five times the threshold quantity (“excessive quantity”), the law provides for a penalty of one to fifteen years’ imprisonment. This penalty also applies if the offense is committed as part of a larger group of offenders dedicated to such crimes.
If a person plays a leading role in such a larger group focused on drug-related crime, the law provides for prison sentences of ten to twenty years or even life imprisonment. Due to the enormous threat of punishment, this is treated as a felony and falls under the jurisdiction of a jury court.
Drug trafficking: Insights from defense practice
Although the term “drug trafficking” might suggest that the offense must have been committed in exchange for payment in order to be punishable, this is not the case. For criminal liability under Sections 28 or 28a of the Austrian Narcotics Act (SMG), it is not necessary to have earned money or intended to earn money. However, if assets have been acquired, this can still have far-reaching financial consequences due to the forfeiture provisions provided for in the Austrian Criminal Code (StGB).
Since lawmakers also want to use this approach to ensure that crime does not pay, the state regularly attempts to skim off the money that is believed to have been obtained through the commission of the crime, which can have far-reaching financial consequences even after the sentence has been served.
Even in cases involving charges under Sections 28 and 28a of the Austrian Narcotics Act (SMG), therapy instead of (custodial) punishment is not ruled out in all cases. A good defense helps to clarify this issue and demonstrate to the court that the necessary conditions have been met. In some circumstances, this can help to avoid long prison sentences.
Crucial decisions are made early on in the investigation process. Statements made to investigating authorities, estimates of unsecured quantities, the classification of secured quantities, and other evidence (as well as any personal history of drug use) play a central role in this process. Spontaneous and unprepared statements can have fatal consequences. Under no circumstances should a statement be made in a narcotics criminal proceeding without prior thorough legal advice based on knowledge of the case file.
Summary
Distinction from Section 27 SMG: Sections 28 and 28a SMG do not concern personal use, but rather the handling of quantities of narcotics that exceed the legal limit. The decisive factor is the pure substance quantity of the active ingredient.
Section 28 SMG – Preparation for drug trafficking: The acquisition, possession, or transport of quantities exceeding the limit with the intention of placing them on the market is already punishable by law. Penalties: up to 3 years, up to 5 years for “large quantities” (more than 15 times the threshold quantity); 1 to 10 years for criminal associations.
Section 28a SMG – Drug trafficking: Covers production, import, and export, as well as offering, procuring, or supplying above the threshold amount. Even the basic offense is a crime (up to 5 years). In the case of aggravating circumstances (large/excessive quantities, criminal association with previous convictions, membership of a larger organization involved in narcotics crime), the penalties range from one to 15 years or – in the case of a leading role in a larger organization – up to 20 years or life imprisonment.
No intention to make a profit required: Criminal liability does not require financial gain. However, if assets have been acquired, there is a risk of additional far-reaching financial consequences (forfeiture).
Importance of defense: Decisive steps are already taken during the preliminary investigation. Statements made without prior legal advice based on knowledge of the case file can have serious disadvantages. In appropriate cases, “therapy instead of punishment” may also be considered. The earlier a lawyer specializing in criminal defense is hired, the better the chances of the best possible outcome of the proceedings.
Contact us to secure your customized defense strategy
Charges under Sections 28 and 28a of the Austrian Narcotics Act (SMG) are regularly accompanied by significant coercive measures in criminal proceedings, such as house searches, telephone surveillance, arrests, and pre-trial detention, as well as substantial prison sentences. Our criminal law advice can make a decisive contribution to avoiding unnecessary or serious criminal consequences for you or your loved ones and (if necessary, by means of therapy instead of imprisonment) securing the opportunity to return to a life free of addiction and crime. If you or someone close to you is facing such allegations, please do not hesitate to contact us.
Contact usFAQ: Frequently asked questions about drug trafficking
Section 27 SMG primarily concerns the unauthorized handling of small quantities of narcotics (including acquisition, possession, or cultivation for personal use). Sections 28 and 28a SMG, on the other hand, concern the handling of quantities that exceed the legal limit and are regularly associated with the distribution of narcotics. As soon as such a quantity is involved, the court examines more serious offenses, and significantly higher penalties may be imposed.
The threshold quantity determines whether an act still falls under Section 27 SMG or whether the stricter provisions of Sections 28 or 28a SMG apply. The decisive factor here is not the total weight of the substance, but the quantity of the active ingredient actually contained therein and legally classified as a narcotic. This so-called threshold quantity is determined on the basis of the Narcotics Threshold Quantities Ordinance.
Preparation for drug trafficking occurs when narcotics are acquired, possessed, or transported (without crossing national borders) in quantities exceeding the threshold amount with the intention of subsequently placing them on the market. Criminal liability arises even if no actual sale has taken place. Among other things, the potential penalties increase significantly for larger quantities.
The law refers to drug trafficking when narcotics are produced in quantities exceeding the limit, imported or exported (across national borders), or offered, transferred, or procured for another person. The basic offense already constitutes a crime, and significantly higher prison sentences are imposed for particularly large quantities or for an offense committed as part of a criminal organization.
Narcotic drugs are defined as those substances and preparations that are expressly listed in the annexes to the Narcotic Drugs Act and in the relevant ordinances. These include substances such as heroin, cocaine, and cannabis, as well as synthetic active ingredients, provided they are classified as narcotic drugs by law.
Criminal liability under Sections 28 or 28a of the Narcotics Act does not require that money has been earned or a financial advantage gained from drug trafficking. Even acts involving narcotics that are not carried out for financial gain are generally punishable. However, additional financial consequences may arise if assets have been acquired through criminal acts, because the judiciary is required to seize assets acquired through illegal activities. The state’s reasoning behind this is that crime should not be profitable.
Seeking legal advice at an early stage can be crucial, because important decisions for the further course of the criminal proceedings are already made during the preliminary investigation. Those who seek legal advice before making a statement are better able to protect their rights and avoid possible disadvantages in the proceedings.
