Drug trafficking sentencing: exclusion of double valuation of drug distribution under the prohibition in § 46(3) StGB

The Federal Court of Justice (BGH) dismissed the defendant's appeal as unfounded, leaving the Landgericht Kassel's judgment in force and ordering the defendant to bear the costs of the legal remedy. The dispute concerned the sentencing phase of a criminal trial for drug offenses, where the lower court had imposed a sentence considering that all seized narcotics had entered the market. Although the BGH acknowledged that the lower court violated the prohibition against double evaluation under § 46 Abs. 3 StGB by using the distribution of the drugs as an aggravating factor after already counting it in the determination of the statutory sentencing range, the appellate court held that this legal error did not affect the final sentence due to the presence of other significant aggravating circumstances. The decisive legal basis is the double-counting prohibition in German criminal law, which restricts the use of facts already considered in the application of the statutory sentencing range from further aggravation in individual sentencing, unless other factors independently justify the severity of the penalty.