Leniency program § 31 Narcotics Act
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Crown Witness Policy

The Narcotics Act contains a crown witness policy; it is set out in Section 31 of the Narcotics Act (BtMG). The provisions of this section allow the competent court to mitigate the sentence for drug-related offenses or even to refrain from punishing the offender entirely. However, specific requirements must be met for this to happen.

The Specific Requirements

Leninism Program under Section 31 of the Narcotics Act (BtMG)

The court may apply the leniency program at its own discretion if an accused, by voluntarily disclosing knowledge, contributes significantly to the investigation of previously committed narcotic offenses or to the effective prevention of planned narcotic offenses. The leniency program therefore requires either assistance in the investigation or assistance in the prevention of planned narcotic offenses from the accused.

Criteria for the Leniency Program for Past Offenses (Section 31 No. 1 of the Narcotics Act)

• The accused must disclose his knowledge voluntarily. If he discloses his knowledge of the offense merely by mistake, e.g., during an interrogation, the prerequisite for the Leniency Program is not met.
• The disclosed knowledge must go beyond the accused’s own contribution to the offense and contribute significantly to the success of the investigation. The accused’s statements must therefore contain information relevant to the investigation that is not yet known to the investigating authorities. If the authorities already had the same level of knowledge as the accused prior to the disclosure, Section 31 of the Narcotics Act cannot be applied.
• The accused’s disclosed knowledge must be related to his own offense and concern a drug-related offense. The assistance in clarifying the offense cannot refer to any other offense under drug law. The leniency program aims to uncover structures, backers, and clients in connection with drug offenses.

The Narcotics Act does not require the accused to make a comprehensive confession under Section 31 No. 1 of the Narcotics Act. For the leniency program, it is sufficient in drug-related criminal law to incriminate other persons.

Criteria for the Leniency Program in the Case of Preventive Assistance (Section 31 No. 2 of the Narcotics Act)

• The accused must voluntarily disclose his knowledge of planned drug offenses.
• The drug offense in the planning stage must be related to the accused’s offense.
• The accused must disclose his knowledge to an authority in sufficient time to prevent a serious drug offense, the planning of which he is aware of.

Criteria for the Leniency Program in the Case of Preventive Assistance (Section 31 No. 2 of the Narcotics Act)

If the disclosure of knowledge meets the requirements of Section 31 of the Narcotics Act, the application of the Leniency Program can bring significant advantages to the accused: a significant reduction in sentence or a complete waiver of punishment.

Yet despite these tempting prospects, caution is advised for several reasons:

• The application of the leniency program is solely at the discretion of the competent court (neither the police nor the public prosecutor have any influence here). The court is not compelled to actually apply the program and grant a reduced sentence or waive the sentence entirely.
• If the accused makes statements about other drug offenses in which he was involved as part of the disclosure of knowledge, he may (unintentionally) incriminate himself and expose himself to prosecution.
• The fact that the accused (severely) incriminates other people as part of the disclosure entails consequences that should be carefully considered. Firstly, the accused will likely have to testify as a witness in court in the proceedings in question, which represents a psychological challenge. On the other hand, the individual short- and long-term reactions of those affected by the disclosure are difficult to predict.