Drug or Illegal Substance? The Complex Legal Situation in Ketamine Cases

Ketamine is increasingly causing uncertainty in criminal justice. The substance exists in a legal gray area between the Medicinal Products Act and the New Psychoactive Substances Act. For defendants, this ambiguity can have decisive effects on sentencing.

The Fundamental Problem: Which Law Applies?

Although the legislature included the substance group of arylcyclohexylamine-derived compounds, which also includes ketamine, in the scope of the New Psychoactive Substances Act (NpSG), the priority application of the Medicinal Products Act regulated in § 1 Abs. 2 Nr. 2 NpSG could preclude punishment under § 4 NpSG for trafficking in ketamine.

The substance referred to as “ketamine” by the criminal chamber in case II.2.b of the judgment grounds is – subject to any substance-specific peculiarities not evident from the judgment grounds – a medicinal product pursuant to § 2 Abs. 1 Satz 2 Nr. 2a AMG.

Ketamine as a Medicinal Product: The Medical Perspective

Ketamine is used in anesthesia and pain treatment, the similarly acting esketamine in the treatment of depression; both are prescription drugs.

Ketamine could be a functional medicinal product in composition and mode of action, namely a substance or preparation that can be applied to or administered to the human body to restore, correct or influence physiological functions through a pharmacological, immunological or metabolic effect (§ 2 Abs. 1 Satz 2 Nr. 2a AMG).

No Authorization Required for Medicinal Product Status

A common misconception: The absence of official authorization or registration does not preclude medicinal product status within the meaning of § 2 Abs. 2 AMG. What is decisive is solely whether the statutory requirements of § 2 Abs. 1, Abs. 2 or Abs. 3a AMG are met; retail-typical packaging or labeling, a package insert or a special form of distribution are not required.

Distinction from Synthetic Cannabinoids

Unlike synthetic cannabinoids, ketamine is not exclusively a substance that influences the physiological functions of a person without being beneficial to health. The decision of the ECJ on synthetic cannabinoids therefore does not preclude the legal classification of ketamine as a functional medicinal product within the meaning of § 2 Abs. 1 Satz 2 Nr. 2a AMG.

Ketamine is Already an End Product

It already exhibits all the properties of a medicinal product and apparently requires no further essential processing or preparation step. The possible addition of salts and water for injection purposes enables the injectability of the agent but does not change its effect.

New Ketamine Derivatives and Their Classification

The fact that so-called 2-fluorodeschloroketamine has recently fallen under the scope of the BtMG merely illustrates that (other) substances may also be traded on the illegal market under the designation “ketamine” which, if not subject to the BtMG, could fall under the NpSG due to lack of medicinal product status.

Practical Consequences for Criminal Proceedings

The court’s findings do not address the material form of the ketamine, so the Senate cannot determine whether the ketamine falls under the Medicinal Products Act (AMG) or the New Psychoactive Substances Act (NpSG).

Fundamentally, ketamine can fall under the New Psychoactive Substances Act or the Medicinal Products Act. The substance group of arylcyclohexylamines listed in the annex to the NpSG under number 6 also includes ketamine. Additionally, ketamine is listed in Annex 1 of the Regulation on the Prescription Requirement for Medicinal Products (AMVV).

Confiscation in Case of Procedural Limitation

Dangerous objects discovered during investigations but having no connection to the offense in question are not subject to security confiscation. There is no such connection between the adjudicated narcotics offenses and the ketamine; regarding this substance, the Regional Court limited the proceedings pursuant to § 154a Abs. 2 StPO and thereby excluded prosecution of an offense under the Medicinal Products Act.

Sentencing Framework: Significant Differences Depending on Classification

The legal classification has massive effects on sentencing. While violations of the Medicinal Products Act are generally punished more leniently, significantly harsher penalties threaten under application of the NpSG. The acts can be assessed as commercial importation of a new psychoactive substance in conjunction with aiding and abetting commercial trafficking in a new psychoactive substance pursuant to § 4 Abs. 1 Nr. 1 Variant 1, Nr. 2 Buchst. b, Abs. 3 Nr. 1 Buchst. a Alternative 1 NpSG.

No Threshold Values for “Not Insignificant Quantity”

It is doubtful whether a threshold value for a “not insignificant quantity” is required for ketamine; the statutory wording of § 4 NpSG does not mention such a characteristic – unlike § 29a Abs. 1 Nr. 2 BtMG or § 34 Abs. 3 Satz 2 Nr. 4 KCanG. However, such an approach is at least within the scope of a permissible judicial determination of the appropriate sentence.

Requirement for Expert Assessment

Whether the confiscated, unspecified “ketamine” is a medicinal product or a new psychoactive substance cannot be assessed without further findings. This requires further findings by the trial court, possibly based on a supplementary examination of the confiscated substance by an expert.

Ketamine in Practice: Use and Abuse

Ketamine (hydrochloride) is a white crystalline, water-soluble powder with analgesic and narcotic properties. Ketamine uptake can occur orally or by snorting or can be injected intramuscularly.

While the effect of intramuscular application sets in after a few minutes and lasts 30-60 minutes, the onset of effect with oral intake occurs between five and 30 minutes, with a duration of effect of 1-2 hours. Depending on the dose, the effect is only comparable to a “slight buzz” but can also lead to complete incapacity to act and lack of will.

Ketamine as a Date-Rape Drug

Date-rape drugs are typically sleeping or anesthetic agents that are mixed unnoticed into food or drinks. The substances produce sedation or lack of will. The victims then usually become victims of property or sexual offenses.

Conclusion

The legal classification of ketamine remains complex and case-dependent. The distinction between the Medicinal Products Act and the New Psychoactive Substances Act is not definitively clarified and is handled differently by the courts. For defendants, this uncertainty can present both risks and opportunities.

What is decisive is the exact material composition of the confiscated material. Blanket statements are not possible. Each case requires individual examination with the assistance of expert expertise.

Personal Consultation in Our Law Firm

If you are confronted with a ketamine accusation, you should seek legal assistance early. The legal classification can determine the sentence. Our law firm has extensive experience in narcotics criminal cases and would be happy to advise you on your options. Schedule an appointment for a detailed consultation.

The post Ketamine in Criminal Law: What You Need to Know About the Legal Classification – Ketamine Lawyer appeared first on Jüdemann Rechtsanwälte.

No prohibition of utilization of evidence for EncroChat data. EncroChat, an end-to-end encrypted messenger used on owned Kypto phones, was probably originally intended to protect celebrities from hacks of their phones. Through constant promotional efforts, the service became successful – the result was that the phones and messenger service were also used by other, not so prominent, people, including members of organized crime to plan and carry out criminal activities. In 2020, Interpol opened investigative proceedings against the network. The Lille prosecutor’s office in France succeeded in penetrating the EncroChat server by technical means and decrypting the communications handled through it. This led to numerous investigations against users. Since the measures taken by the French investigators could have been illegal according to German understanding, the question arose as to whether the data obtained was thereby subject to a prohibition on the use of evidence. This was affirmed in part by the courts of first instance. The higher regional courts, including the Berlin Appellate Court, have essentially come to the conclusion that there is no such prohibition.

The Berlin Appellate Court has recently ruled that the data obtained via the allegedly tap-proof communication service “EncroChat” can be used. Previously, the criminal court had taken the view that the defendant’s chat communication, which the prosecution relied on as decisive evidence, was not suitable for legal reasons to prove the defendant’s guilt; it could not be used in German criminal proceedings. The collection of this data – by the French investigating authorities – was unlawful (in relation to the defendant) and the encroachment on fundamental rights that it entailed was therefore not justified. The unlawfulness resulted from the fact that the data had been obtained in violation of Directive 2014/41/EU of the European Parliament and of the Council of April 3, 2014, on the European Investigation Order in Criminal Matters (hereinafter: Directive EEA) and of the regulations issued for its implementation in the Law on International Mutual Assistance in Criminal Matters (IRG). The measure was also unlawful because the qualified suspicion required under §§ 100a and 100b of the Code of Criminal Procedure did not exist when it was ordered and carried out. The violation of Article 31 of the EEA Directive assumed by the Criminal Division was so important that it outweighed the state’s interest in prosecution.

The Berlin public prosecutor’s office filed an immediate appeal against the decision of the criminal division. The Appellate Court granted the appeal.  Like other courts before it, the Appellate Court affirmed the usability of the data. This was justified, among other things, by the fact that the data had previously been effectively obtained under French law. The fact that the order for the investigative measures carried out by the French authorities did not appear to meet the requirements that would have to be met under German law for monitoring Internet-based data exchange and telecommunications did not prohibit the exploitation of the findings obtained from this according to the overall assessment to be made.

Fragen zu Encro-Chat? Kontaktieren Sie uns!

Rechtsanwalt Kai Jüdemann

Specialist lawyer for criminal law / specialist lawyer for copyright and media law

The post No prohibition of utilization of evidence for EncroChat data (KG of 30.08.2021 – 2 Ws 93/21) appeared first on Jüdemann Rechtsanwälte.