Possession as a Criminal Offence

Hertha Firnberg Position T 25 Possession as a Criminal Offence Gudrun HOCHMAYR 09.03.1999 Lately the Austrian legislator tends to extend the punishability of the possession of objects: In the last four years three further criminal offences concerning the possession of objects have been inserted in the Austrian Penal Code ( 177a, 207a, 280). This extension of punishability is mainly caused by the difficulties faced when trying to prove the acquisition of a prohibited object (e.g. of paedophiliac pornographic material). Against the background of this questionable development the criminal act of possession shall be subjected to a more precise examination. The question will play an important role whether the punishability of possession is compatible with the Austrian Constitution. For example it is doubtful whether the possession of objects can be subject to an offence of a protected value. If the criminality of possessing prohibited objects (e.g. drugs or weapons) is explained by the suspicion that the possessor of these objects might use them in a criminal way, the problem occurs that a punishability based on mere suspicion would be contrary to the presumption of innocence according to Article 6 of the Convention on European Human Rights. Moreover, there has to be examined whether the opinion that the punishability of possession was not compatible with the German Constitution as it penalised a mere relation to an object (and not a human conduct) is valid for the Austrian Constitution too. By these examinations, guiding principles for future penal provisions shall be provided. In addition, universal principles as to the requirements of punishment shall be elaborated and some doubtful positions being held in jurisdiction and in literature, analysed. For example, in jurisdiction the opinion is prevailing that the consumption of drugs is a form of possession and that for punishment a "will to possess" the object is not required - only two examples for positions worth reconsidering.

The project deals with the punishability of mere possession of such objects as weapons, drugs or paedophiliac pornographic material. Although the importance of possession as a criminal offence is increasing, the prerequisites for punishment are under discussion. Above all, it is questionable whether the term "to possess" has to be interpreted in a broad sense, including the mere status of (intentional or negligent) possession, or whether it requires - like other criminal offences - a human conduct. As a result of the project it is shown that a human conduct is an indispensable element of possession as a criminal offence. First it was to examine which kinds of criminal offences penalizing the possession of objects exist in the Austrian, German and Swiss law. The criminal offences of this nature have proved very numerous. There are, however, other terms than "to possess" that are used for these criminal offences - for instance, "to carry a weapon without permission" or "to have a forbidden object on sale". The objects of punishable possession extend to weapons of all kind, dangerous substances, drugs, non-licensed medicaments, pornographic materials, assets of criminal origin, protected animals and other objects. It should be noted that the notion of possession used in criminal law differs from one used in ordinary language. In criminal law its meaning is twofold: On the one hand, it signifies the status of possession, i.e. the relation of a person to an object, on the other hand, the criminal act of possession. The status of possession is the central point of the concept of possession in criminal law. It corresponds with the term "natural possession" in civil law (in German: "Gewahrsam"). A "will to possess" is not required for the status of possession in criminal law. It exists, for instance, on all objects which a person wears on its body or in its clothes or which are in its home. But smoking a cigarette containing drugs does per se not constitute a form of possession. Therefore, somebody who takes part in smoking such a cigarette is not punishable for the possession of drugs. As a criminal act, possession should be defined as follows: "to cause the status of possession by an act or to maintain such a status by an act or an omission". Therefore, the beginning of punishable possession is marked by acquiring an incriminated object, for example a forbidden weapon. This interpretation does neither infringe the wording of "to possess" nor is it contrary to the system of provisions penalizing the possession of objects. Valuable motives for the acquirement of objects can be considered by defences. Because of the difficulties faced when trying to prove the acquisition of a prohibited object, the second form of punishable possession is more important, namely the omission to end one`s possession. Punishable possession should not be interpreted as a liability for the mere status of possession. Such an interpretation would be contrary to the universally accepted principle that punishment requires individual responsibility and for that a controlled human conduct causing the criminal result is indispensable. Either an act or an omission, or a combination thereof, is a constituent element of all crimes. For that reason the criminal offences against possession do not establish a new kind of criminal liability independent of human conduct. The results of this examination should give reason for jurisprudence to an exact subsumption and to restrict punishment for the possession of objects. Only by that means the universal principle that punishment requires a controlled human conduct and individual responsibility is to be maintained.