Why is pseudoephedrine illegal


Jurisprudence (hrr-strafrecht.de)


HRRS number: HRRS 2015 No. 760

Editor: Karsten Gaede and Christoph Henckel

Suggested citation: BGH, 1 StR 426/13, decision v. April 30, 2015, HRRS 2015 No. 760


BGH 1 StR 426/13 - decision of April 30, 2015 (LG Munich II)

Unauthorized trading in basic substances that are intended to be used for the unauthorized manufacture of narcotic drugs (exception for basic substances as an active ingredient of a drug: even if they are easy to extract, here: pseudoephedrine); Referral procedure to the ECJ.

Section 19 (1) No. 1 GÜG; § 3 GÜG; § 1 No. 1 GÜG; Art. 1 No. 2 Directive 2001/83 / EC; Article 2 letter a) sentence 2 Regulation (EC) No. 273/2004; Art. 2 lit. a) Clause 2 of Regulation (EC) No. 111/2005; Section 267 (3) and (4) TFEU

Principles of the editor

1. The active ingredient pseudoephedrine is the active ingredient of a medicinal product within the meaning of Art. 1 No. 2 of Directive 2001/83 / EC of the European Parliament and of the Council of 6 November 2001 on the creation of a Community code for medicinal products for human use [OJ . EU No. L 311 of November 28, 2001 p. 67] is not a "basic material" in the sense of § 1 No. 1 and § 3 GÜG.

2. This applies to basic substances that are the active ingredient of a drug, even if the active ingredient can be easily used or easily and economically extracted from the drug.

Decision tenor

1. On the appeal of the accused, the judgment of the Regional Court Munich II of February 25, 2013 is overturned. 2. The further revision is discarded.

3. To the extent of the annulment, the matter will be referred back to another criminal chamber of the regional court for a new hearing and decision, including the costs of the appeal.

reasons

I.

The district court has sentenced the accused to a prison sentence of one year and three months for aiding and abetting illegal trading with a raw material that is to be used for the unauthorized manufacture of narcotics (Section 19 (1) No. 1 GÜG in conjunction with Section 3 GÜG) . The execution of the sentence has been suspended. In addition, the regional court ordered the "forfeiture" of a sum of money in the amount of 200 euros.

II.

The following determinations and evaluations are based:

1. Between August 2010 and March 2011, the separately persecuted N. purchased large quantities of drugs in eight cases (Reactine Duo, Rhinopront and ZyrtecD). These all contain pseudoephedrine. In four cases, the drugs were purchased from a pharmacy in Germany. In the other cases, Ms. N. obtained the medication from a Hungarian citizen in Budapest. She had the drugs transported to the Czech Republic with the help of other people. There the pseudoephedrine was processed into methamphetamine. When the drugs were purchased and transported to the Czech Republic, N., who was persecuted separately, was aware of the use there for the production of the drug mentioned.

Knowing the circumstances mentioned in the previous paragraph, the defendant took part in one of the transports of the medication from Germany as a courier. From C. he drove to the Czech Republic with the tablets containing pseudoephedrine that Ms. N. had previously acquired. There the defendant handed over one of the cartons he had transported containing the drugs Reactine Duo and Rhinopront to unknown Czech customers at a rest area. He took the remaining boxes to an apartment in Prague that was given to him as the delivery address. There he was also given the agreed courier fee of 200 euros and another 200 euros in petrol money. The tablets transported by the defendant contained a good 7,400 grams of pseudoephedrine. From this, around 1,640 grams of methamphetamine base could be produced (UA p. 23). The defendant reckoned that the tablets he had transported could be used to manufacture narcotics and approved this (UA p. 7).

2. The regional court has the behavior of the separately persecuted N. each as a criminal offense according to § 19 Abs. 1 Nr. 1 GÜG ("Law for the supervision of the traffic with raw materials, which can be misused for the unauthorized manufacture of narcotics" in the version of March 11, 2008, Federal Law Gazette I p. 306). Contrary to the prohibition contained in § 3 GÜG, the latter traded in a raw material within the meaning of § 1 No. 1 GÜG that was supposed to be used for the unauthorized manufacture of narcotic drugs. The regional court judged the transport activity of the accused as aiding and abetting one of the crimes committed by Ms. N.

3. The accused turns against the judgment with the general complaint. The appeal has largely met with success. It leads to the annulment of the judgment under appeal, but not the underlying findings.

III.

The findings made do not bear the guilty verdict. There is already a lack of one (main) act according to § 19 Paragraph 1 No. 1 GÜG of the separately persecuted N., to which the accused aided by the courier trip.

The active ingredient pseudoephedrine is, as here, the active ingredient of a medicinal product (within the meaning of Art. 1 No. 2 of Directive 2001/83 / EC of the European Parliament and of the Council of 6 November 2001 on the creation of a Community code for medicinal products for human use [ OJ EU No. L 311 of November 28, 2001 p. 67]), is not a "raw material" within the meaning of § 1 No. 1 and § 3 GÜG. Accordingly, the separately persecuted N. did not trade in a raw material contrary to Section 3 GÜG and did not realize the criminal offense of Section 19 (1) No. 1 GÜG.

1. The penal provision of Section 19 (1) No. 1 GÜG requires trading with a “raw material”. As the Senate has already stated in its decision of December 5, 2013 (1 StR 388/13) issued in the criminal case against the separately prosecuted N., the "basic materials" covered by the criminal offense within the meaning of § 1 No. 1 and § 3 GÜG by the regulation (EC) No. 273/2004 of the European Parliament and of the Council of February 11, 2004 regarding drug precursors (OJ EU No. L 47 of February 18, 2004 p. 1 ff.) and No. 111/2005 of the Council of December 22, 2004 laying down rules for the supervision of trafficking in drug precursors between the Community and third countries (OJ EU No. L 22 of January 26, 2005 p. 1 ff. and No. L 61 of March 2, 2006 p. 23), including their annexes, determines “recorded substances” (cf. Volkmer in Graf / Jäger / Wittig, Wirtschafts- und Steuerstrafrecht, 2011, preliminary remarks to §§ 19 to 21 GÜG marginal number 3). The active ingredient pseudoephedrine contained in the medicinal products is listed in Annex I of the above-mentioned ordinances as a category 1 substance (see only OJ EU No. L 47 of February 18, 2004 p. 7). In the case of the drugs containing pseudoephedrine, with which the separately persecuted N. traded with the support of the defendant, it should, in view of the interpretation of § 1 No. 1 and § 3 GÜG on the basis of Union law act as "recorded substances" within the meaning of the above-mentioned ordinances in order to be able to assume a basic substance in accordance with the criminal provision § 19 (1) No. 1 GÜG. However, this is not the case.

a) According to Art. 2 Letter a) Sentence 2 of Regulation (EC) No. 273/2004 and Art. 2 Letter a) Clause 2 of Regulation (EC) No. 111/2005 are, among other things, medicinal products within the meaning of Art. 1 No. 2 of Directive 2001/83 / EC excluded from "recorded substances". This results from the following:

aa) With the aforementioned decision of December 5, 2013 in case 1 StR 388/13 in accordance with Section 267 (3) and (4) TFEU, the Senate submitted the following question to the Court of Justice of the European Union for a preliminary ruling:

"Are medicinal products according to the definition of Directive 2001/83 / EC of the European Parliament and of the Council of 6 November 2001 on the creation of a Community code for medicinal products for human use, which is governed by Regulations (EC) No. 273/2004 and (EC) No. 111 / 2005 contain 'recorded substances', always excluded from their scope in accordance with Art. 2 letter a) of these ordinances, or this is only to be assumed if the medicinal products are composed in such a way that they are not simply used or easily and can be extracted economically? "

bb) In its judgment of February 5, 2015 (Joined Cases C-627/13 and C-2/14, OJ EU 2015 No. C 107, 11), the Court of Justice of the European Union ruled on the preliminary ruling procedure for law:

“The respective Art. 2 Letter a of Regulation (EC) No. 273/2004 of the European Parliament and of the Council of February 11, 2004 on drug precursors and Regulation (EC) No. 111/2005 of the Council of December 22, 2004 laying down rules for the monitoring of trade in drug precursors between the Community and third countries is to be interpreted as meaning that a medicinal product within the meaning of the definition of Art. 1 No. 2 of Directive 2001/83 / EC of the European Parliament and of the Council of 6 November 2001 on the creation of a Community code for medicinal products for human use as amended by Regulation (EC) No. 1901/2006 of the European Parliament and of the Council of December 12, 2006, even if there is one in Annex I of Regulation No. 273 / 2004 and in the annex of Regulation No. 111/2005 contains the substance that is easily used or easily and economically extracted, cannot be classified as a 'scheduled substance'. "C c) The application of this case law to the interpretation of Section 1 No. 1, Section 3 and Section 19 (1) GÜG excludes the pseudoephedrine contained in the traded or transported drugs Reactine Duo, Rhinopront and ZyrtecD, regardless of its ease of extraction to evaluate the respective drug as a "raw material". In view of the definition of the content of the mentioned feature of domestic law on the basis of Regulations (EC) No. 273/2004 and No. 111/2005, a medicinal product within the meaning of Art. 1 No. 2 of Directive 2001/83 / EC, to which the subject matter here Medicines all belong, are not assessed as "recorded substance" in the sense of Union law and thus not as a basic substance according to § 1 No. 1, § 3 GÜG. There is therefore a lack of behavior according to Section 19 (1) No. 1 GÜG according to the criminal offense of the separately persecuted N. and related aiding and abetting of the accused.

b) The contested judgment was therefore to be set aside (Section 349 (4) of the Code of Criminal Procedure). This also includes the order to “forfeit” (meaning forfeiture of the value replacement, see UA p. 25) of a monetary amount of 200 euros. With the lapse of the guilty verdict, the order lacks the basis.

2. There was no need to repeal the legally correct findings in accordance with Section 353 (2) StPO. There is only a valuation error by the regional court, which does not affect the findings. The new judge is not prevented from making additional, non-contradicting findings.

IV.

An acquittal of the accused by the Senate in accordance with Section 354 (1) of the Code of Criminal Procedure was out of the question. It cannot be ruled out that a new main hearing may result in criminal liability for the accused (within the meaning of Sections 155, 264 of the Code of Criminal Procedure).

1. According to the findings made so far, at least one criminal liability of the accused for complicity in a criminal offense cannot be ruled out under the Narcotics Act. All of the drugs containing pseudoephedrine acquired in Germany and Hungary by N., who was persecuted separately, were brought to the Czech Republic and processed there into methamphetamine (UA p. 9). The regional court also ruled that 2,500 packs of the ZyrtecD drug acquired from the separately persecuted N. in Hungary were transported by her to Prague and handed over there to T., who was also persecuted separately. He in turn brought the drugs to an address in the Czech town of L. The law enforcement authorities of the Czech Republic found a laboratory for the extraction of pseudoephedrine and its conversion into the drug methamphetamine ("Crystal Speed") at this address (UA p. 8 f .). The regional court also - as mentioned - overall convinced itself that the drugs put on the market were converted into methamphetamine shortly after delivery and that this was sold with the intention of making a profit (UA p. 9). Right from the start, all those involved accepted that the tablets traded could be used to manufacture narcotics and that these would then be traded illegally (UA p. 9).

These findings already suggest the possibility of criminal liability for the accused (at least) for aiding and abetting the unauthorized trade with or manufacturing narcotics in not small quantities (Section 29a (1) No. 2 BtMG). The fact that pseudoephedrine itself is not a substance subject to the Narcotics Act does not contradict (see Patzak in Körner / Patzak / Volkmer, BtMG, 7th edition, § 1 marginal number 13).

2. When examining a criminal liability of the accused that has not been excluded from the outset according to the provisions of the Medicines Act (AMG) or aiding and abetting such an offense, the new criminal offense will have to consider that pseudoephedrine according to Annex 1 to § 1 No. 1 and § 5 AMVV in the version dated July 21, 2010, which was relevant for the period of the offense, was not one of the ingredients of a drug that led to a prescription requirement.

HRRS number: HRRS 2015 No. 760

Editor: Karsten Gaede and Christoph Henckel