Self-consumption, shared consumption and drug trafficking crimes

As a law firm specializing in drug trafficking in Barcelona , we must emphasize that Article 368 of the Criminal Code criminalizes the crime of drug trafficking, which punishes anyone who cultivates, produces, or traffics, or otherwise promotes, encourages, or facilitates the illegal use of toxic drugs, narcotics, or psychotropic substances, or possesses them for those purposes. This crime encompasses a wide variety of behaviors, ranging from the cultivation and preparation of drugs to their subsequent sale. However, there are certain behaviors that, despite their apparent fit with the literal meaning of the aforementioned provision, are considered atypical by the courts, as they do not affect the legal right protected by this crime, which is public health.

One of the most common cases is drug possession for personal use . According to case law, drug possession only constitutes a criminal offense if it is intended for trafficking, that is, if the possessor acts with the intent to traffic. On the other hand, possession for personal use is atypical, without prejudice to the possibility of administrative sanctions, in accordance with the provisions of Organic Law 4/2015 on the Protection of Citizen Security.

What do we mean by intent to traffic?

As expert lawyers in drug trafficking in Barcelona , we can affirm that, in general terms, the presence of intent to traffic is usually proven through indications, among which the following stand out (STS no. 698/2007):

1. If the amount of drugs exceeds five daily doses, the limit varies depending on the drug possessed. For example, courts typically set this threshold at 3 grams of heroin, 50 grams of hashish, 100 grams of marijuana, 7.5 grams of cocaine, etc.
2. That the possessor is not a habitual consumer of said substance.
3. That possesses different types of drugs.
4. That the drug possessed is prepared for distribution, for example, in paper bags, or that it is hidden.
5. The possessor’s lack of purchasing power in relation to the value of the drug he possesses.
6. The high purity of the substance.
7. Possession of instruments used to cut drugs or large sums of cash.

What do we mean by shared consumption?

As a drug trafficking lawyer in Barcelona , it is worth highlighting that another behavior that, according to jurisprudence, does not constitute a crime is shared consumption . We are a law firm of criminal lawyers specializing in drug trafficking . Therefore, we can affirm that, in accordance with the doctrine of the Supreme Court, for shared consumption to go unpunished, a series of requirements must be met, which are included, among others, in STS No. 360/2015, of June 10: that the individuals involved must be habitual users or addicts who group together to consume the substance; that the consumption takes place in a closed space; that the act is limited to a small group of identifiable and specific addicts or drug dependents; and finally, that the quantities of drugs do not exceed what is necessary for immediate consumption.

What’s happening with cannabis clubs?

We have a team of the best criminal lawyers in Barcelona specializing in drug trafficking offenses .

As a criminal lawyer specializing in drug trafficking , we can affirm that one of the most controversial cases is that of cannabis clubs . The Supreme Court ruled a few years ago on the criminal relevance of the activities carried out by these types of associations. Judgment No. 484/2015 is particularly illustrative. It established that the analysis of the criminal relevance of the activities carried out by these associations must be carried out based on the circumstances of the specific case, without establishing strict requirements to determine whether or not the activity constitutes a drug trafficking offense. What the Court does point out is that if the activity carried out by the association consists of organizing a system of cultivation, stockpiling, or acquisition of drugs for the purpose of distributing or delivering them to third parties, even if the purchasers are required to have previously joined a club or association, the acts will constitute a crime.

This thesis has been applied in subsequent rulings, including the recent Supreme Court ruling No. 380/2020 of July 8. In this ruling, the Supreme Court argues that the activity carried out by cannabis clubs is not comparable to shared consumption among friends or acquaintances, where one person is responsible for obtaining the drug with the contribution of everyone else, in order to consume it immediately together. This is because, in the first case, we are dealing with an institutionalized structure, intended to be permanent and open to the subsequent integration of a large number of people. Consequently, it rules out the possibility of transferring the impunity of self-consumption to those associations that facilitate the distribution of narcotic substances to a large number of people, understanding that the leaders of these types of clubs are responsible for creating a real and uncontrollable risk that the quantities of drugs handled by the association will be distributed to third parties.