What is the crime of drug trafficking?

The crime of drug trafficking consists of the production, distribution, sale, transport or any activity intended to promote or facilitate the illegal consumption of narcotic, toxic or psychotropic substances.

It is regulated in Articles 368 to 378 of the Spanish Penal Code, whose main objective is to protect public health and prevent such conduct from harming the well-being of society. These laws prohibit and punish any action that contributes to illicit drug trafficking, as it represents a serious risk to public health and safety (Supreme Court Judgment No. 409/2013).

What behaviors constitute the crime of drug trafficking?

According to Article 368 of the Penal Code, this crime is committed by anyone who cultivates, produces, traffics, promotes, facilitates, or enables the illegal consumption of toxic drugs, narcotics, or psychotropic substances. It also includes anyone who possesses these substances for these purposes.

Are you being accused of drug trafficking? Talk to a drug trafficking lawyer .

What penalties does the Penal Code establish for this crime?

The penalties depend on the type of drug involved:

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

Exceptions to the crime of drug trafficking

• Shared consumption : It is not a crime if all those involved are regular consumers, there is no risk to third parties, no economic consideration, and the consumption is in a closed place (STS no. 364/2008).
• Coexistence with the perpetrator : Mere cohabitation or knowledge of the criminal activity does not imply criminal responsibility.
• Insignificant quantities : The delivery of doses below the minimum psychoactive amount is not considered a crime.

Types of drug trafficking offenses

Attenuated modality

The courts may impose a lesser sentence when the offense is minor or the defendant’s personal circumstances justify it. For example, this approach has been applied to individuals who simply facilitated drug use by pointing out drug sales locations, or to those who made a one-off, sporadic sale of small quantities. This mitigation recognizes that not all cases are equally serious and that participation may be limited.

Aggravated forms

The penalties are increased if specific circumstances are present, such as:

• That the perpetrator is an authority figure, public official, teacher or social worker and commits the crime in the exercise of their duties.
• That the accused participates in organized activities or that the crime facilitates other criminal activities.
• That the crime is committed in establishments open to the public, by their owners or employees.
• Providing drugs to minors, people with mental disabilities, or those undergoing rehabilitation treatment.
• That the amount of drugs is of considerable importance.
• That drugs are manipulated or mixed to increase their harm to health.
• That the crime occurs in educational, military, penitentiary or rehabilitation centers.
• That violence or weapons are used to commit the crime.

If the perpetrator belongs to a criminal organization, the penalties increase to imprisonment of 9 to 12 years and a fine of up to four times the value of the drug in cases of substances that cause serious harm, and from 4 years and 6 months to 10 years in other cases.

Furthermore, Article 370 of the Penal Code allows for the penalty to be increased by one or two degrees if the crime involves minors or mentally disabled persons, or if the facts are extremely serious.

Criminal liability of legal entities

According to Article 369 bis of the Penal Code, legal entities can be criminally liable for drug trafficking offenses. The sanctions include:

• Fines of 2 to 5 years or three to five times the value of the drug, when the penalty provided for the individual is greater than 5 years.
• Fines of 1 to 3 years or two to four times the value of the drug, when the penalty for the individual ranges between 2 and 5 years.

In addition, the judge can impose measures such as dissolution of the company, suspension or closure of activities, prohibition from accessing subsidies and public aid, and judicial intervention.

Optional mitigation of the penalty

Article 376 of the Penal Code allows the judge to reduce the sentence by one or two degrees if the accused voluntarily abandons his criminal activities and collaborates with the authorities, helping to prevent the crime or the capture of other responsible parties.

A reduction may also be applied if the convicted person, being drug-dependent at the time of the events, proves to have successfully completed a rehabilitation treatment, provided that the amount of drugs involved is not of notorious importance or extreme seriousness.

If you are involved in a drug trafficking case and need specialized legal advice, at the criminal law firm in Barcelona , ​​NIETO ENRIQUEZ ABOGADOS PENALISTAS, we have a team of expert drug trafficking lawyers with extensive experience and dedication.

Our commitment is to protect your rights and offer you a personalized and effective defense at all stages of the criminal process.