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.