Article 370 Spanish Criminal Code: Extreme gravity in drug trafficking offences

Article 370 raises the penalty of Article 368 by one or two degrees where minors are used, where the accused are the leaders of an organisation or where the conduct is of extreme gravity, and it defines that concept exhaustively.

Wording of Article 370 of the Spanish Criminal Code

Elements of the offence

1. A drug trafficking offence under Article 368, which is the presupposition of the aggravation.
2. The use of persons under eighteen or of persons with a psychical impairment, in the case of number 1.
3. The position of leader, administrator or person in charge of a criminal organisation, in the case of number 2.
4. One of the situations of extreme gravity exhaustively defined in the provision, in the case of number 3.

Defence strategy

Notably exceeding notorious importance. The case law has fixed the multiples of notorious importance which trigger extreme gravity. Verifying the purity of the substance, and the resulting reduction to the pure base, is the technical operation which most frequently removes this aggravation.

Vessels used as a specific means of transport. The provision requires the vessel to have been used as a specific means of transport for the trafficking. Occasional use, or transport in a vessel used for other purposes, does not satisfy the requirement as construed by the case law.

Position within the organisation. Number 2 is confined to leaders, administrators and persons in charge. A member who carried out material tasks, however repeatedly, does not fall within it, and the telephone and documentary evidence on the actual role played is decisive.

Prohibition of double assessment. Where the same circumstance has already been weighed under Article 369, its further application under Article 370 is precluded. Identifying that overlap is essential, since each degree in this field represents several years of imprisonment.

• Article 368 CP: drug trafficking
• Drug offences defence in Spain
• Criminal organisations and groups
• Offences against public health

This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.