You were stopped at a police check with a small amount of cannabis, cocaine or another substance. The officer seized the drugs, you were questioned. Now you are asking yourself: Will I go to prison? Will I get a criminal record? What happens next?

The clear answer: for a small amount held for personal use, in Austria you will as a rule not end up in court. The Narcotic Substances Act provides a separate route for personal use: diversion instead of conviction, a probationary period instead of prison. In its decision 11 Os 21/18z, the Supreme Court (Oberster Gerichtshof, OGH) made clear that the public prosecutor is obliged to deal with a case of personal use by way of diversion.

But be careful: possession remains a criminal offence. There is no punishment-free „small amount“ in Austria. On this page I explain, as a criminal defense lawyer in Vienna, what actually happens after you are caught, what rights you have, and why a lawyer in drug cases can make the difference.

Is possession of a small amount exempt from punishment? The biggest myth

No. In Austria there is no punishment-free „small amount“ and no „permitted personal use“. The possession of narcotic drugs is in principle punishable under § 27 SMG – even for the smallest amounts. In its decision 11 Os 94/78, the OGH made clear that even briefly drawing on someone else’s joint constitutes punishable „possession“.

What does exist, however, is a privilege for personal use. Anyone who possesses narcotic drugs exclusively for their own consumption falls under § 27 para 2 SMG. Instead of up to one year, the maximum is then six months‘ imprisonment or a fine of 360 daily penalty units (Tagessätze). And, more importantly still: for personal use the public prosecutor must dispose of the case by way of diversion (§ 35 para 1 SMG).

What „personal use“ means in law

Personal use under § 27 para 2 SMG covers two constellations: own consumption and the altruistic passing on to another person for that person’s personal use (OGH 11 Os 21/18z). The possessor must not have drawn any advantage from it – neither financially nor in any other way.

Important: there is no upper limit on quantity for personal use. Even the acquisition and possession of a large quantity of narcotic drugs for personal use falls under § 27 para 2 SMG (OGH 14 Os 62/99). The quantity alone does not justify any inference of an intention to deal. What is decisive is exclusively the purpose.

What „small amount“ means in practice

The law does not define the term „small amount“. In practice it is understood to mean anything below the threshold quantity that makes personal use plausible. But here too the rule holds: the threshold quantity marks the border to drug trafficking under § 28a SMG – not the border of impunity. Below the threshold quantity, possession remains punishable; it is merely treated more leniently.

What happens if you are caught with a small amount?

No competitor explains the actual sequence of events after you are caught. Here are the six steps that, in practice, lie ahead of you – from the moment of the police check to the final dismissal of the proceedings.

1. Police check and seizure. The police seize the narcotic drugs. You are questioned on the spot or at the station. The seized material is sent for analysis to determine the active-substance content in pure substance – because the threshold quantity refers to pure substance, not to the gross weight. A report is then submitted to the public prosecutor. Your most important right at this stage: you do not have to incriminate yourself. Use your right to remain silent and tell the police that you first wish to speak to a lawyer.
2. The public prosecutor reviews the case. The prosecutor examines three questions: Is there personal use (§ 27 para 2 SMG)? Is the quantity below or above the threshold quantity? Are there any prior convictions? Where there is personal use and the quantity is below the threshold, the next step is clear: the prosecutor must provisionally withdraw from prosecution (§ 35 para 1 SMG). That is not discretion – it is a statutory duty.
3. Opinion of the health authority. The public prosecutor requests an opinion – primarily from a suitable medical facility of the justice system, otherwise from the district administrative authority (in Vienna: the Magistrat) acting as the health authority (§ 35 para 3 no 2 SMG). A doctor assesses whether there is a need for treatment. Exception for cannabis: where the proceedings concern exclusively cannabis for personal use, the prosecutor must dispense with this opinion (§ 35 para 4 SMG) – unless an investigation for a narcotics offence (§§ 27–31a SMG) was already conducted against the person within the last five years.
4. Provisional withdrawal and probationary period. The public prosecutor provisionally withdraws from prosecution and sets a probationary period of one to two years (as a rule, two years). You receive written notification of this. During the probationary period you must not again come to attention for a narcotics offence.
5. Health-related measure (or plain probation). Where the doctor finds a need for treatment, the probationary period is tied to a health-related measure under § 11 para 2 SMG – for example medical monitoring of your state of health, medical treatment including withdrawal and substitution treatment, clinical-psychological counselling, psychotherapy or psychosocial counselling. Where no need for treatment is found – often the case with cannabis – the probationary period runs without any further conditions: no medical appointment, no counselling.
6. Final dismissal. If you have observed the probationary period and have not reoffended, the public prosecutor withdraws from prosecution definitively (§ 38 SMG). The proceedings are dismissed. You have no criminal record. If you committed a new offence during the probationary period or failed to meet the conditions, the proceedings can be resumed.

Special case: already charged

Where charges have already been brought, the court can dismiss the proceedings by order up to the end of the main trial hearing (§ 37 SMG). §§ 35 and 36 SMG are applied by analogy.

Threshold quantities in Austria – the table

The threshold quantity under the Narcotics Threshold Quantity Ordinance (Suchtgift-Grenzmengenverordnung, SGV) determines whether a case is classified as drug possession (§ 27 SMG) or as drug trafficking (§ 28a SMG). What is always decisive is the active-substance content in pure substance, not the gross weight of the material.

What happens below vs. above the threshold quantity?

„Therapy instead of punishment“ – § 35 SMG explained

§ 35 SMG is the centrepiece of Austrian narcotics criminal law. The statute is built on the principle of health before punishment. Where drugs are possessed for personal use, the focus is not on the penalty but on diversion combined with a health-related measure.

When MUST the public prosecutor use diversion?

Under § 35 para 1 SMG, the provisional withdrawal from prosecution is mandatory where the offence was committed exclusively for personal use and the accused drew no advantage from it. The probationary period is one to two years. That is not discretion, not an act of grace – it is a statutory duty of the public prosecutor.

When MAY the public prosecutor use diversion?

Under § 35 para 2 SMG, the prosecutor may also withdraw provisionally in the case of other offences under §§ 27, 30–31a or §§ 28, 28a SMG, where the offence does not fall to be tried before a lay-judge or jury court, the degree of guilt is not serious, and the withdrawal serves the purpose of deterrence. Here the public prosecutor has a margin of discretion.

Which health-related measures exist?

The catalogue in § 11 para 2 SMG comprises five levels – from the lightest form of monitoring to intensive therapy:

1. Medical monitoring of the state of health
2. Medical treatment including withdrawal and substitution treatment
3. Clinical-psychological counselling and care
4. Psychotherapy
5. Psychosocial counselling and care by qualified persons

The specific measure depends on the need for treatment that has been established. In addition, probation assistance can be ordered (§ 36 SMG).

Special rule for cannabis

Where the proceedings concern exclusively cannabis for personal use, the public prosecutor must dispense with the medical opinion (§ 35 para 4 SMG) – unless an investigation for a narcotics offence was already conducted against you within the last five years. In practice this means that, for small amounts of cannabis, the probationary period often runs without any condition at all.

Prior convictions and personal use – diversion despite a record?

Yes. In its decision 11 Os 21/18z of 13 March 2018, the OGH made clear beyond doubt: a record of prior convictions does not stand in the way of a provisional dismissal of proceedings under § 35 para 1 SMG. § 35 para 1 SMG contains no special-prevention grounds for exclusion.

This means: even a person who is already convicted of drug possession or of other offences is, in the case of personal use, entitled to the diversion under § 35 para 1 SMG. The public prosecutor may not refuse diversion on the sole ground of a prior conviction.

The difference: § 35 para 1 vs. para 2

The prior-conviction question concerns above all the distinction between para 1 and para 2:

• § 35 para 1 (mandatory): personal use – prior convictions irrelevant, diversion is a duty
• § 35 para 2 (discretion): other SMG offences – prior convictions can be taken into account in the discretionary balancing

This is precisely where the defense comes in: where the public prosecutor disputes personal use and wants to apply § 35 para 2 instead of para 1, the hurdle for diversion rises. An experienced lawyer for drug offences will establish personal use in order to enforce the compulsory character of para 1.

What penalty do you face for drug possession?

The penalty range for drug possession in Austria depends on three factors: the purpose of the possession, the quantity and the surrounding circumstances. Here is the overview:

Diversion as the normal outcome for personal use

The penalty ranges in the table are theoretical maximum values. In practice, for personal use the normal outcome is diversion under § 35 para 1 SMG: provisional withdrawal, probationary period, dismissal – no criminal record, no hearing, no judgment.

Deferral of enforcement of the sentence in cases of drug dependence

Even where a conviction does result: § 39 SMG allows the enforcement of a custodial sentence to be deferred for up to two years where the convicted person is drug-dependent and undergoes a health-related measure. For sentences of more than 18 months, this applies only where there is no safety risk.

Why a lawyer is decisive in drug cases

Many accused persons believe that a drug-possession case involving a small amount is dismissed automatically. In practice, the outcome depends on the correct classification – and that is exactly where an experienced lawyer for drug possession makes the difference.

What a defense lawyer actually does

• Establish personal use: the distinction between § 27 para 1 and para 2 SMG decides whether diversion is a duty or a matter of discretion. A lawyer in drug cases documents own consumption and rebuts allegations of dealing.
• Check the substance analysis: the threshold quantity refers to pure substance. Laboratory results must be checked for accuracy – errors in the analysis can make the difference between § 27 and § 28a SMG.
• Steer your statements: spontaneous statements to the police can undermine personal use. A lawyer ensures that you say only what serves your defense.
• Enforce diversion: where the public prosecutor refuses the mandatory diversion under § 35 para 1 SMG, the lawyer can challenge this.
• Prevent aggregation: in 13 Os 20/94 the OGH held that small quantities acquired at different times may not be added together. A lawyer knows this case-law and applies it.

Frequently asked questions on drug possession and personal use

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