The crime of drug trafficking is regulated in arts. 368 to 378 of the Penal Code, precepts that protect public health, understood as the set of conditions that allow guaranteeing the health of each person, prohibiting the performance of dangerous social practices that may cause deterioration in the population (STS No. 409/2013).

The basic modality of this crime, regulated in art. 368 of the Penal Code, punishes persons who carry out acts of cultivation, processing or trafficking, or who in any other way promote, favor or facilitate the illegal consumption of toxic drugs, narcotics or psychotropic substances, as well as those who possess such substances for the purposes previously indicated. The penalty applicable to this case varies depending on the type of drug:

1. Imprisonment of 3 to 6 years and a fine of up to three times the value of the drugs involved in the offense, if the drugs are substances that cause serious damage to health (e.g. heroin, cocaine or LSD).
2. Imprisonment of 1 to 3 years and a fine of 1 to 2 times in other cases (e.g. marijuana or hashish).

Is the mere possession of drugs a crime? The answer to this question varies depending on the purpose of such possession: if the possession of the drug is for trafficking, it is a crime, while if it is for other purposes (for example, personal consumption), the behavior does not constitute a crime, without prejudice to the possibility of administrative sanctions. How do the courts determine whether the perpetrator was acting with the intent to traffic? Through a series of indications, such as the amount of drugs possessed, the condition of habitual consumer of the perpetrator, the possession of different types of drugs, whether the drug possessed is prepared for distribution (for example, in paper packets), the attitude adopted by the perpetrator towards the Police, the possession of instruments to cut the drug… (STS No. 698/2007).

On the other hand, the Courts understand that, in certain cases, even if the perpetrator’s conduct complies with the requirements of art. 368 of the Penal Code, it does not constitute a crime because it is not suitable to affect public health. This is the case, for example, in the following cases:

1. Shared consumption: does not constitute a crime as long as a series of requirements are met, among others, that all those involved are habitual consumers, that there is no risk of consumption by third parties, that there is no economic consideration, that the consumption takes place in a closed place… (STS No. 364/2008).
2. Drug possession in the context of cohabitation: the Courts consider that the mere cohabitation with the perpetrator of the crime and the fact of knowing that the latter is involved in drug trafficking is not sufficient to convict for this crime. Therefore, it is not possible to punish as a perpetrator of a drug trafficking crime a father who lives in the same house as his son, where the latter has stored certain quantities of drugs intended for sale.
3. Delivery of insignificant quantities of drugs: the delivery of drugs in quantities lower than the minimum psychoactive dose (which is the amount of drug necessary to produce effects in the human body) is not a crime either.

Attenuated mode

The Courts may impose the lesser penalty in degree depending on the minor nature of the act and the personal circumstances of the offender. For example, the Courts have applied this type of crime to a person who merely facilitated consumption by indicating where there were drug sales points or to a person who carried out an occasional and sporadic act of selling a small quantity of drugs.

Aggravated modalities

The acts constituting the crime of drug trafficking are punishable by a penalty higher in degree than that previously indicated if any of the following circumstances concur:

1. The perpetrator is an authority, public official, medical practitioner, social worker or teacher and commits the crime in the performance of his or her duties.
2. The guilty party participates in other activities organized or whose execution is facilitated by the commission of the crime.
3. The acts are committed in establishments open to the public, by their managers or employees.
4. If the drugs are provided to minors, mentally handicapped persons or persons undergoing treatment for addiction or rehabilitation.
5. If the amount of drug of notorious importance.
6. If drugs are handled or mixed with each other or with other drugs, increasing the possible damage to health.
7. If the crime is committed in educational centers, military or penitentiary establishments or rehabilitation centers.
8. If the perpetrator uses violence or weapons to commit the crime.

Likewise, if the perpetrator belongs to a criminal organization, the penalties are imprisonment of 9 to 12 years and a fine of four times the value of the drug, in the case of substances that cause serious damage to health, and imprisonment of 4 years and 6 months to 10 years and the same fine, in other cases.

On the other hand, Art. 370 of the Penal Code allows imposing the penalty one or two degrees higher than the one foreseen in the basic modality in the following cases if the perpetrator uses minors or mentally handicapped persons to commit the crime or if the facts are extremely serious.

Criminal liability of legal persons

Pursuant to Article 369 bis of the Criminal Code, legal persons may be criminally liable for the crime of drug trafficking, in which case the penalty to be imposed is as follows:

1. A fine of 2 to 5 years or three to five times the value of the drug, if the offense committed by the natural person is punishable by imprisonment for more than 5 years.
2. A fine of 1 to 3 years or double to quadruple the value of the drug, if the crime committed by the natural person is punishable by imprisonment of 2 to 5 years.

In addition, the judge may impose the penalties of dissolution, suspension of activities, closure of premises, prohibition of future activities, special disqualification from obtaining public subsidies and aid, and judicial intervention.

Optional attenuation

Finally, Article 376 of the Criminal Code allows the judge to impose a sentence one or two degrees lower than that legally established, if the perpetrator has voluntarily abandoned his criminal activities and has actively collaborated with the authorities to prevent the commission of the crime or to obtain decisive evidence for the identification or capture of other perpetrators or to prevent the actions of the organizations to which he belonged.

The Court may also impose the sentence lower by one or two degrees to the convicted person who, being a drug addict at the time of the commission of the facts, proves to have successfully completed a treatment for drug addiction, provided that the amount of drugs was not of notorious importance or of extreme gravity.