What is the crime of drug trafficking?

The crime of drug trafficking involves the production, distribution, sale, transportation, or any activity aimed at promoting or facilitating the illegal consumption of narcotic, toxic, or psychotropic substances.

It is regulated under Articles 368 to 378 of the Spanish Criminal Code, whose main objective is to protect public health and prevent these actions from harming the well-being of society. These laws prohibit and penalize any conduct contributing to the illicit drug trade, as they pose a serious risk to collective health and safety (Supreme Court Ruling No. 409/2013).

What actions constitute drug trafficking?

According to Article 368 of the Criminal Code, this crime is committed by anyone who cultivates, manufactures, traffics, promotes, facilitates, or enables the illegal consumption of toxic drugs, narcotics, or psychotropic substances. It also includes possession of such substances with those intentions.

Are you being accused of drug trafficking? Speak with a drug trafficking lawyer.

What penalties does the Criminal Code establish for this crime?

Penalties vary depending on the type of drug involved:

• Substances causing serious harm to health (e.g., heroin, cocaine, LSD): 3 to 6 years in prison and a fine up to three times the value of the drug.
• Other substances (e.g., marijuana, hashish): 1 to 3 years in prison and a fine up to twice the value.

Exceptions to the crime of drug trafficking

• Shared use: Not a crime if all participants are regular users, no danger to third parties exists, no payment is made, and consumption occurs in a private location (STS No. 364/2008).
• Cohabitation with the offender: Simply living with or being aware of the criminal activity does not imply criminal liability.
• Insignificant amounts: Providing doses below the psychoactive minimum is not considered a crime.

Types of drug trafficking offenses

Mitigated modality

Courts may impose a lesser sentence when the crime is minor or the accused’s personal circumstances justify it. For example, it applies to those who merely pointed out drug-selling locations or made a one-time small sale. This acknowledges that not all cases are equally severe.

Aggravated modality

Penalties increase under specific circumstances, such as:

• The offender is an authority, public official, teacher, or social worker acting in their role.
• Participation in organized crime or the offense facilitates other crimes.
• The offense occurs in public venues, committed by staff or managers.
• Drugs are provided to minors, mentally disabled individuals, or those in rehabilitation.
• The drug amount is notably large.
• Drugs are altered to increase health risks.
• Offenses occur in schools, military bases, prisons, or rehab centers.
• Use of violence or weapons in committing the crime.

If part of a criminal organization, sentences increase to 9–12 years in prison and a fine up to four times the drug’s value (for serious harm substances), or 4 years and 6 months to 10 years for others.

Article 370 also allows increasing penalties by one or two degrees if minors or mentally disabled individuals are involved or the offense is particularly serious.

Criminal liability of legal entities

According to Article 369 bis of the Criminal Code, legal entities may also be held criminally responsible. Sanctions include:

• Fines of 2 to 5 years or three to five times the value of the drug if the individual penalty exceeds 5 years.
• Fines of 1 to 3 years or two to four times the value if the individual penalty is between 2 and 5 years.

Judges may also impose:

• Dissolution of the company,
• Suspension or closure of activities,
• Prohibition from receiving public subsidies or aid,
• Judicial intervention.

Optional reduction of the sentence

Article 376 allows the judge to reduce the sentence by one or two degrees if the accused voluntarily stops their criminal activity and cooperates with authorities to prevent the crime or help capture other offenders.

This reduction may also apply if the defendant was a drug addict at the time of the offense and successfully completed a rehab program, as long as the drug quantity was not significantly large or extremely serious.

If you are facing charges for drug trafficking and need legal guidance, NIETO ENRÍQUEZ ABOGADOS PENALISTAS has a team of experts with extensive experience and commitment in these cases.

Our goal is to protect your rights and provide personalized, effective legal defense throughout every stage of the criminal process.