Of hashish biscuits and smashed chocolate Santas

Christmas – a festival of charity and contemplation?

If you look at the relevant statistics, the opposite is probably the case. In particular, violent offences within families and partnerships increase during the Advent season.

The following seemingly curious cases show that even the ever-popular Christmas treats can play a role in criminal offences:

On Christmas Eve in 2020, a couple from Wismar wanted to enjoy their daughter’s homemade Christmas biscuits, but were admitted to hospital shortly after eating them with dizziness, nausea and a racing heart.

There it turned out that the couple’s 24-year-old daughter had mixed the biscuit dough with hashish – without telling her parents, of course.

She was probably hoping to lighten the mood a little at Christmas.

The biscuits were seized by the police, who then investigated the daughter for dangerous bodily harm and possible offences against the Narcotics Act.

An almost identical case occurred in Rockenhausen in 2014. There, on Christmas Eve, the accused brought home-baked biscuits, which he had previously spiked with hashish, to his parents’ house and placed them openly on the table for consumption.

Several family members, including minors, helped themselves to the gift. One of the people suffered from sweating and tremors after eating it.

The Rockenhausen District Court sentenced the defendant to a suspended sentence for the unauthorised supply of narcotics to a person under the age of 18, the unauthorised possession of narcotics and dangerous bodily harm.

However, following an appeal, the Higher Regional Court of Zweibrücken (decision of 11 February 2016 – 1 OLG 1 Ss 2/16), referring to the relevant case law of the Federal Court of Justice, ruled as follows:

Dangerous bodily harm pursuant to Section 224 (1) No. 1 StGB with the provision of poison or other substances harmful to health requires that not only simple damage to health is caused, but that the substance used in the individual case must be associated with a concrete risk of significant harm. Sweating and trembling would not be sufficient for this.

Furthermore, it had not been established with certainty whether the defendant had actually caused the health complaints in his family member intentionally.

The OLG also expressed doubts with regard to the unauthorised supply of narcotics pursuant to Section 29a I No. 1 Var. 1 BtMG. In order to fulfil the offence, the offender must lose the actual power of disposal over the narcotic drug. Whether this was the case if the biscuits were openly available for consumption and the person handing them over was in a certain physical proximity was not sufficiently discussed.

In the same year, a prisoner at Rosdorf Prison had completely different worries at Christmas time:

He had his parents send a chocolate Father Christmas to the prison by post. However, the confectionery did not reach its recipient, but was confiscated as soon as it arrived in the post on the instructions of the prison management.

According to the prison, chocolate Santas are hollow objects that could be used to transport unauthorised items (e.g. SIM cards, drugs or weapons) into the prison.

However, the inmate insisted on his Christmas present and took legal action at Göttingen Regional Court to have the chocolate Father Christmas returned.

Here, however, he failed: the regional court agreed with the Rosdorf prison in its assessment and also emphasised that the risk could not be ruled out with certainty even by an examination with an X-ray machine or the use of a drug-sniffing dog. The latter would not be an option, particularly for reasons of hygiene, and an X-ray could only show an organic mass in the hollow body and not whether the chocolate itself had been enriched or replaced.

However, the prison and the inmate were able to agree on a pragmatic solution for Christmas: The chocolate Father Christmas was smashed under the supervision of the prison staff and could then be eaten.