⚖️ Treatment instead of punishment (§ 35 BtMG)
In brief
§ 35 of the Narcotics Act (BtMG) allows the enforcement of a prison sentence of up to two years to be deferred if the offence is connected with a narcotics dependence and the convicted person begins treatment or undertakes to do so. Important: this applies only to dependence on substances within the meaning of the BtMG – not to pure alcohol or medication dependence.
If the treatment is successfully completed, the time in the facility can be credited against the sentence (§ 36 BtMG), up to two thirds of the sentence counting as served. If the person breaks off treatment without promptly resuming it, the deferral can be revoked.
Step by step
- Check the requirements (with legal advice)Conviction to at most 2 years' imprisonment, offence connected with narcotics dependence, willingness to undergo treatment.
- Clarify the therapy place and recognitionThe treatment facility must be state-recognised; an addiction advice centre or clinic helps with the search and issues an admission certificate.
- Application to the enforcement authorityThe public prosecutor's office decides on the deferral with the consent of the trial court.
- Carry out and prove the treatmentAdmission to and continuation of treatment must be proven at certain intervals; the facility must report a break-off.
Deadlines
- § 35 BtMG does not apply to pure alcohol or medication dependence – anyone who assumes it does may lose time by making the wrong application.
- The provision requires a final (legally binding) conviction; it only applies in the enforcement procedure, not during pre-trial detention before the judgment becomes final.
- Breaking off therapy without promptly resuming it can lead to revocation of the deferral and an arrest warrant.
In depth · legal basis, figures and practice – for advisers and professionals
§ 35 BtMG in the wording (summarised)
If someone has been sentenced to imprisonment of no more than two years for an offence and the offence is based on a narcotics dependence, the enforcement authority, with the consent of the court of first instance, can defer enforcement of the sentence, of a remainder of sentence or of placement in a withdrawal facility (§ 64 StGB) for a maximum of two years if the convicted person is undergoing rehabilitation treatment or undertakes to do so and the start of treatment is secured. If the court refuses consent, a complaint to the Oberlandesgericht (higher regional court) is possible.
Crediting under § 36 BtMG
The proven time spent in a state-recognised treatment facility is credited against the sentence until, as a result of the crediting, two thirds of the sentence are served. For other forms of treatment, the court suspends the remaining sentence on probation as soon as the requirements are met.
Break-off and revocation
If the convicted person breaks off treatment without promptly continuing or resuming it, the deferral can be revoked; an arrest warrant can then be issued.
Juvenile criminal law
According to consistent specialist sources, §§ 35, 36 BtMG apply by analogy also to juvenile sentences, with the juvenile judge as head of enforcement; in addition there is a separate rule for juveniles and young adults (§ 38 BtMG), whose exact content could not be verified in the full text in this research.
Uncertain/not conclusively clarified
The exact content of § 38 BtMG and the application of the principles of § 35 BtMG to pre-trial detention could not be conclusively verified against a primary source.
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