Criminal sentencing: irrelevance of express reference to confiscation of narcotics as a mitigating factor given other sentencing grounds

The German Federal Court of Justice dismissed the defendant’s appeal as unfounded, upholding the final judgment of the Osnabrück Regional Court and ordering the defendant to bear the costs of the appellate proceedings and necessary legal expenses incurred by the victim. The dispute centered on a criminal trial where the defendant challenged the sentencing, specifically arguing that the trial court failed to explicitly consider the confiscation of narcotics (case type 2) as a mitigating factor that might have warranted a lower individual sentence. In an ancillary remark, the court determined that given the other sentencing circumstances, it is excluded that the trial court would have imposed a lower individual sentence had it expressly noted the confiscation of the drugs, thereby finding no legal error to the defendant’s detriment under Section 349 (2) of the Code of Criminal Procedure.