Drug trafficking lawyer Barcelona

The truth is that no legal criteria have been established to differentiate between drugs that cause serious harm to health and those that do not.

Notwithstanding the foregoing, there are many resolutions that establish the following criteria to determine whether a substance causes serious harm to health:

• Harmful to health.
• Due to the high level of dependency it creates in the consumer.
• Due to the number of deaths caused by its poisoning.
• By the degree of tolerance.

In any case, without being exhaustive, the following drugs should be mentioned as being considered to cause serious damage to health: cocaine, heroin, methadone, morphine, opium, LSD, amphetamines, synthetic drugs (MDA, MDEA, MDMA or ecstasy), methamphetamines, GHB, GBL, liquid ecstasy, liquid X, scoop, Cherry meth, fantasy, easy lay, butyrolactone crystal, speed, speed-ball, centramines, butyrolactone or mescaline.

Cannabis derivatives containing THC as an active ingredient, regardless of their presentation (marijuana, griffa, Kiff, red or green resin oil) and pharmaceutical preparations such as “Tranquimazín”, “Rohipnol”, “Orfidal”, “Halción”, “Tranxilium”, “Valium”, “Flunitrazepam”, Tepacepam”, “Buprex”, “Clonacepam”, “Bustaid”, Alprazolam” and, in general, all benzodiazepines.

Possession of the drug must be for the purpose of trafficking, since possession for personal use is atypical from a criminal point of view.

In practice, to distinguish between possession for the purpose of trafficking – criminally typical – and possession for personal consumption – criminally atypical –, evidence of circumstantial evidence is usually used, taking into account the following data: the condition of the addict or consumer, the quantity of the substance, the purity of the drug, the discovery of utensils for the manipulation, preparation and subsequent distribution of the drug, such as precision scales, the diversity or variety of the drug found, the discovery of unjustified cash or the market value of the drug.

However, our Supreme Court, even in cases where the person carrying the narcotic substance is a consumer, has considered that the drug is intended for trafficking when the quantity exceeds the average consumer’s stockpile.

Notwithstanding the foregoing, the truth is that there is no quantity above which it can be stated that the crime of drug trafficking exists.

In cases where there are no other incriminating elements, such as those described above, possession of drugs in quantities less than three days’ worth of personal use should be considered possession for personal use, not punishable by criminal law. Our Supreme Court ruled in this regard in its Judgments 843/13, 12-11; 629/06, 12-6, among many others.

For example, in the case of cocaine , a line of jurisprudence, expressed in various Supreme Court rulings, has established a daily dose of two grams, and has presumed the purpose of trafficking in possession exceeding fifteen grams.

Notwithstanding the foregoing, other rulings by the same Court have placed the average daily consumption of cocaine at one and a half grams, in accordance with the criteria of the National Institute of Toxicology, and this figure for daily consumption was accepted by the non-jurisdictional Plenary Session of the Criminal Division of the Supreme Court on October 19, 2001.

The National Institute of Toxicology also believes that the average user typically consumes drugs for five days.

With regard to hashish, case law has considered that amounts of the indicated drug exceeding fifty grams are intended for transmission to consumers (SS. of 4-5-98 [RJ 1998, 4605], 8-11-91 [RJ 1991, 7985], 12-12-94 [RJ 1994, 9805], 20-1 [RJ 1995, 74] and 5-11-95 and 10.1 [RJ 1996, 8898] and 12-296 [RJ 1996, 914]). With regard to heroin, the National Institute of Toxicology has set the allowance for personal consumption at three grams .

The courts may impose a lower penalty than that specified in the first paragraph of Article 368, taking into account the minor nature of the offense and the personal circumstances of the offender . However, this power may not be exercised if any of the circumstances referred to in Articles 369 bis and 370 of the Criminal Code are present.

To assess the low level of the incident, one can consider the average consumption level, the “lower level of trafficking,” the sale of drugs to known habitual users, the isolated or sporadic sale of one or more packets of drugs, and, in general, any circumstance that allows one to consider that there is no quantitatively significant impact on public health.

And, for their part, the personal circumstances of the offender require consideration of the reasons that motivated the commission of the crime. Thus, factors affecting the perpetrator’s social and individual environment are often analyzed, such as their background, whether they are a drug addict, their age, educational level, psychological maturity, their behavior after the crime, etc.

The penalties applicable if this mitigation of the basic type is present would be one year and six months to two years, ten months, and twenty-nine days in the case of drugs that cause serious harm to health; and imprisonment from six months to eleven months and twenty-nine days in the case of drugs that do not cause serious harm to health. In addition, in both cases, a proportional fine will be imposed in an amount ranging from half to the actual value of the drug involved in the crime.

The penalties contemplated in article 368 of the Criminal Code shall be imposed at a higher level and a fine of one to four times the maximum when any of the following circumstances occur:

• 1st The guilty party is an authority, public official, physician, social worker, teacher or educator and acts in the exercise of his or her position, profession or trade.
• 2nd The offender will participate in other organized activities or whose execution is facilitated by the commission of the crime.
• 3rd The acts were carried out in establishments open to the public by those responsible or employees of the same.
• 4. The substances referred to in the previous article are provided to minors under 18 years of age, to the mentally handicapped, or to persons undergoing rehabilitation or withdrawal treatment.
• 5th The quantity of the aforementioned substances that are the object of the conduct referred to in the previous article is of significant importance .
• 6. The aforementioned substances are adulterated, manipulated or mixed with each other or with others, increasing the possible damage to health.
• 7. The conduct described in Article 368 of the Criminal Code takes place in educational centers, military centers, establishments or units, penitentiary establishments or rehabilitation or rehabilitation centers, or in their vicinity.
• 8th The guilty party uses violence or exhibits or uses weapons to commit the act.

The application of this aggravated type entails increasing the prison sentences from 3 years and 1 day to 4 years and 6 months, and a fine (substances that do not cause serious damage to health) or imprisonment from 6 years and 1 day to 9 years, and a fine (serious damage to health).

Regarding the aggravation contemplated in attention to the quantity of notorious importance (5th), such provision will only be applied in cases where the 500 doses referred to daily consumption are exceeded, taking into consideration only the base or toxic substance reduced to purity (except hashish and its derivatives), which entails the need for an expert opinion on the richness of the drug.

For example, in the case of cocaine, the aggravating circumstance of notorious importance would be applied for quantities greater than 750 grams, in the case of marijuana 10 kg, hashish 2.5 kg and MDMA 240 grams.

For its part, article 369 bis punishes with prison sentences of nine to twelve years and a fine of one to four times the value of the drug if it involves substances and products that cause serious damage to health and with prison sentences of four years and six months to ten years and the same fine in cases of drugs that do not cause serious damage to health when the acts described in article 368 CP have been committed by those who belong to a criminal organization.

It is also contemplated that the heads, managers or administrators of the organization will be imposed penalties higher in degree than those indicated in the previous paragraph.

The penalty higher by one or two degrees than that indicated in article 368 shall be imposed when:

• • 1. Minors under 18 years of age or mentally handicapped persons are used to commit these crimes.
  • 2. They are the heads, administrators or managers of the organizations referred to in circumstance 2 of section 1 of article 369.
  • 3. The conduct described in article 368 was extremely serious.

Cases shall be considered extremely serious in which the quantity of the substances referred to in Article 368 significantly exceeds that considered to be of notorious importance, or ships, boats or aircraft have been used as a specific means of transport, or the indicated conduct has been carried out simulating international trade operations between companies, or international networks dedicated to this type of activities are involved, or when three or more of the circumstances provided for in Article 369.1 concur. In the cases of the above numbers 2 and 3, the guilty parties shall also be imposed a fine of one to three times the value of the drug that is the object of the crime.

Article 368 of the Criminal Code punishes those who carry out acts of cultivation, production, or trafficking, or otherwise promote, encourage, or facilitate the illegal consumption of toxic drugs, narcotics, or psychotropic substances, or who possess them for those purposes.

The penalty imposed for the above conduct will depend on whether we are dealing with drugs that cause serious harm to health, in which case a penalty of 3 to 6 years in prison and a fine of one to three times the value of the drug is contemplated, or if we are dealing with drugs that do not cause serious harm to health, in which case a penalty is between 1 to 3 years in prison and a fine of one to two times the value of the drug.

In this case, we could argue that there is no intention to distribute it to third parties and, therefore, a drug trafficking crime cannot be charged, since there is no risk to public health.

Judgment of the Barcelona Provincial Court No. 557/2023 of July 18: It reminds us that the Supreme Court has consistently established in its jurisprudence that Article 368 of the Criminal Code (Drug Trafficking) has a very broad scope, encompassing everything from the production and distribution of drugs to any act that promotes, facilitates, or encourages their consumption. It also includes mere possession if the purpose of this is to traffic the substance.

This means that specific harm doesn’t have to be caused or a specific outcome achieved; it’s enough that the actions taken pose a risk to public health.

Jurisprudentially, it is understood that this is a crime of mere activity. This means that the crime is consummated by the mere performance of the conduct described in Article 368 of the Penal Code, without requiring any subsequent result.

As an example, Supreme Court Ruling 563/2019 of November 19 clearly defines it as a crime of mere activity and abstract risk that is usually comprised of a plurality of actions.