Betäubungsmittel-Gleichstellungsverordnung

Das Instrument der sog. Gleichstellungsverordnungen im Betäubungsmittelrecht gehört wahrscheinlich zu den ersten Fällen strafrechtlicher Blankettnormen.

Artikel 10 der Internationalen Opium - Konvention (Genf 1925).

• UNODC: Esters of Morphine:

The provision by which the Convention of 1925 undertook to meet such a situation was its Article 10. This read as follows: "In the event of the Health Committee of the League of Nations, after having submitted the question for advice and report to the Permanent Committee of the Office international d'Hygiene publique in Paris, finding that any narcotic drug to which the present Convention does not apply is liable to similar abuse and productive of similar ill-effects as the substances to which this Chapter of the Convention applies, the Health Committee shall inform the Council of the League accordingly and recommend that the provisions of the present Convention shall be applied to such drug. -"The Council of the League shall communicate the said recommendation to the Contracting Parties. Any contracting Party which is prepared to accept the recommendation shall notify the Secretary-General of the League, who will inform the other contracting Parties.- "The provisions of the present Convention shall thereupon apply to the substance in question as between the Contracting Parties who had accepted the recommendation referred to above."- This procedure was so cumbersome that it took at least a year and a half to reach the decision, and then it was only a recommendation, which, moreover, had to be affirmatively accepted before it had any effect. And finally, the 1925 Convention did not even take effect until 1928. Thus the decade of the 1920's came to an end before the flood of poison was stopped in all the manufacturing countries, in spite of the moral obligation which, it would seem, had already been expressed in the 1912 Hague Convention. -The situation developed rapidly after 1925: the drug manufacturers were making hay while the sun still shone. The remarks of the Chairman of the Advisory Committee of the League of Nations in 1928 have already been quoted. As a result of the discussion, and consideration of a report by Professor Knaffl-Lenz[**] summarizing the earlier medical and pharmacological evidence and his own observations, the Committee adopted the following resolution: - "The Committee desires to draw the attention of the Council to the attempt which has been successfully made to evade the existing system of control over the traffic in drugs by the manufacture of benzoyl-morphine and other esters of morphine which fall outside the provisions of most national laws but from which morphine can easily be recovered and which, so far as known, are liable to give rise to the same abuse; and it would urgently recommend that, pending the completion of the procedure under Article 10 of the Geneva Convention for bringing such substances within the scope of the Convention, the Governments should immediately apply to benzoyl-morphine, and possibly other similar substances if manufactured, the same control over manufacture, distribution, export and import as in the case of morphine."- Also in 1928, at its 13th session, the Health Committee of the League adopted the following resolution, designed to bring benzoylmorphine and other morphine esters under the control of the 1925 Convention:

"The Health Committee:

"Having taken note of the opinion formulated by the Permanent Committee of the Office international d'Hygiene publique on its report of May 15th, 1928;

"Having noted that dilaudide, on the one hand, and benzoylmorphine and, in general, the morphine esters, on the other hand, are capable of producing toxicomania;

"Decides to inform the Council of the League of Nations, in conformity with Article 10 of the International Opium Convention of February 19th, 1925, that dilaudide, on the one hand, and benzoyl-morphine and the morphine esters generally are narcotics capable of producing harmful effects similar to those produced by products envisaged by the Convention, and that they should, in consequence, be brought within the scope of the Convention."

At its 14th session, in 1929, the Health Committee supplemented this with another resolution, which:

"Places on record that the recommendation made at its thirteenth session concerning the application of Article 10 of the International Opium Convention to 'benzoylmorphine and the morphine esters generally,' should apply to all morphine esters without exception. The possibility of exempting, in conformity with Article 8 of the Convention, those esters, the innocuous character of which may hereafter be clearly demonstrated, is, however, reserved."

At its 15th session, in 1930, the Health Committee again supplemented its previous decisions with the following resolution:

"The Health Committee,

"Consider that preparations which contain esters of morphine, di-hydro-oxycodeinone, di-hydro-codeinone (dicodide), di-hydro-morphinone (dilaudide) should be treated in the same manner as those which contain diacetylmorphine, that is to say, they should come within the scope of the Convention, whatever the percentage of narcotic substances contained may be.

"It also considers that all salts of these substances should come within the scope of the Convention according to the provisions of Article 10 of the said Convention."

This virtually completed (5 years late) the slow process of bringing the morphine esters under full control, so far as this was possible under the 1925 Convention.

What the situation was like at its height may be judged from the following excerpt from the report of the Permanent Central Opium Board on its work during its sixth and seventh sessions:

"Large quantities of these drugs [esters of morphine] were manufactured, and as they are not, as far as is known, used for either medical or scientific purposes, they can only have been intended for the illicit traffic. The Board cannot affirm that its calculations in this matter have any claim to accuracy; but, as far as the information at its disposal allows it to form a judgment, it would seem...that some 12 tons of morphine were manufactured in 1929 and became available for the illicit traffic in the form of esters." (Italics ours.) (C.629.M.250.1930.XI.)

In 1928 six tons of benzoylmorphine were sent to Dairen, destined for China. 1350 kg were seized, but over 4? tons got through, and presumably were used by addicts. Mr. Lyall (Assessor) at the eighteenth session of the Advisory Committee on Opium and other Dangerous Drugs, while commenting on the small penalties imposed on the traffickers (page 67), remarked that "He understood that 1350 kg was equivalent to 270 million maximum medical doses of heroin. If this were so, and if, as he believed, 2700 doses were sufficient to destroy one person body and soul, the quantity in question was enough to bring destruction on 100,000 people." Actually this was the smaller of the quantities referred to, which was seized; the quantity which completely disappeared in the illicit traffic, on this one occasion, was three times as great.

An analysis by the League Secretariat of the international trade in morphine, diacetylmorphine, and cocaine, for the years 1925-1929, indicated that some 36 tons of morphine had been made available for the illicit traffic in the form of morphine esters, or possibly in some cases other drugs not covered by the 1925 Convention. (Report to the Council, Advisory Committee on Traffic in Opium and Other Dangerous Drugs, 14th session, 1931, page 3.) These esters had no medical use and their manufacture was abandoned when controls were imposed.

Full control was imposed in Switzerland as of 1 February 1930; the conversion of morphine into drugs "not covered by the Convention" promptly dropped from 5475 kg in 1929 to 1875 kg in 1930, plus a mere 123 kg of benzoylmorphine, reported separately for the first time in that year.

The most enormous manufacture was in Germany. There the manufacturers converted the prodigious amount of 18620 kg of morphine into drugs "not covered by the Convention" in 1929. With the imposition of controls by the German Government, this amount promptly dropped to 9060 kg in 1930 and to 4060 kg in 1931, where it held fairly steady (5195 kg in 1932 and 4861 kg in 1933). These later figures represented the medical demand for codeine and ethylmorphine, the manufacture of which has been reported as 3890 kg in 1921. To the later figures would also have to be added any conversion of morphine for medical needs into dihydromorphinone, as this was only reported separately after controls were imposed; but the amount only averaged 50 kg annually from 1930 to 1933. It would appear therefore that the medical needs supplied by the German manufacturers could easily have been met by some 6 tons of morphine converted into the products in question, whereas some 18.6 tons were converted in 1929, more than twice as much, it would seem, for addiction as for medical needs.

It is seen that the outpouring of narcotics from Europe in the latter half of the 1920's resulted from several factors: reluctance in some cases to accept international obligations in the narcotics field, defects in the Conventions when strictly construed, the existence of a few utterly unscrupulous manufacturers who were ready to supply the drug traffickers, and the slowness of countries to react when the drug use was in some other part of the world.

It may be pointed out that in spite of the vastly improved provisions of the 1931 Convention for manufactured narcotics, and the 1948 Protocol for new narcotics, some similarity can be seen in the post-war world to the situation described in the preceding paragraph. The factors cited have continued to operate, to some extent and in some countries, both in regard to the manufacture of heroin and also as regards the advent of new analgesics of addicting capacity. Nothing, however, has yet approached the earlier exploitation of heroin or the morphine esters which were used as substitutes for heroin

Opiumgesetz von 1929: in § 1 Abs. II OpiumG wird die Möglichkeit eröffnet, ständig neue Substanzen dem Opiumgesetz zu unterstellen, wenn diese den bereits verbotenen Drogen aufgrund ihrer Wirkungsweise ähneln.

Im internationalen Recht bringt das Protokoll von 1948 den Durchbruch für diese Art der Kriminalisierung. Das Stichwort lautet hier: "similarity concept".

The 1948 Protocol Bringing under Control ... was "the first drug control treaty to implement the similarity concept; that is, its provisions applied to all drugs with similar harmful effects and abuse liabilities as the drugs specified in article I, paragraph 2 of the 1931 treaty [1]. The similarity concept was also included in the 1961 Single Convention on Narcotic Drugs and the 1971 Convention on Psychotropic Substances. - The impetus for the treaty was the popularity of new, uncontrolled opiate derivatives that were outside the scope of the Permanent Central Board's restrictions. In particular, manufacturers were switching from morphine to pethidine, methadone, and other designer drugs to evade the international restrictions. The similarity concept was specifically designed to combat these tactics. - In addition, every Party to the Protocol was committed to inform the UN Secretary-General of any drug used or capable of being used for medical or scientific purposes (and not falling within the scope of the 1931 Convention) which that party considered capable of abuse and of producing harmful effects. The Protocol also authorized the Commission on Narcotic Drugs to place such a drug under provisional control. The provisional control measures might be altered in the light of the conclusions and decisions of the World Health Organization (and subsequently in the light of experience). - The Protocol was superseded by the 1961 Single Convention on Narcotic Drugs."Protocol Bringing under International Control Drugs outside the Scope of the Convention of 13 July 1931 for Limiting the Manufacture and Regulating the Distribution of Narcotic Drugs, in: en.wikipedia.org

Weblinks und Literatur

• Chatterjee 2013 International ....quoting article 1o of 1925 Geneva Convention
• Cousto, Hans; Eve & Rave, Berlin (2001 ?) Verordnungen zur Änderung betäubungsmittelrechtlicher Vorschriften ..
• International Convention Relating to Dangerous Drugs ...
• UN Treaties (p. 331, article 10 of the 1925 Geneva International Opium Convention