Drug offences in Spain are prosecuted under Article 368 of the Criminal Code, which punishes the cultivation, production, trafficking or promotion of the consumption of illegal substances. The province of Alicante, with its ports, its airport and its position on the Mediterranean corridor, generates a substantial volume of these proceedings, and a significant proportion of them involve foreign nationals.

Possession for personal use is not an offence

Spanish criminal law does not punish consumption or possession for one’s own consumption. Possession in a public place is an administrative infringement under the Public Security Act, sanctioned by a fine, not by the criminal courts.

The question in almost every case is therefore whether the quantity seized is compatible with personal consumption. The Supreme Court works with the reference figures published by the National Institute of Toxicology, based on average daily consumption over five days, but those figures are indicative and not binding. The presence of scales, packaging material, cash in small denominations or messaging traffic shifts the assessment towards trafficking.

Penalties and the mitigated type

The basic penalties are three to six years for substances causing serious harm and one to three years for the remainder. Article 368(2) allows the court, having regard to the minor nature of the act and the personal circumstances of the offender, to impose the penalty one degree lower, which in practice can bring the sentence within the range where suspension is available.

Article 369 sets out aggravating circumstances that raise the penalty by one degree: notable quantity, adulteration increasing the harm, commission in educational or military establishments, and belonging to an organisation.

• Article 368, substances causing serious harm to health: prison of 3 to 6 years and a fine of one to three times the value of the substance.
• Article 368, other substances: prison of 1 to 3 years and a fine of one to two times the value.
• Article 368(2), mitigated type: penalty lowered by one degree where the act is of minor significance.
• Article 369, aggravated types: penalty raised by one degree; notable quantity alone can take cocaine cases above 750 grams into a range of 6 to 9 years.

Where the defence is won

The lawfulness of the search is the first and most productive line. A vehicle search requires a justified suspicion recorded in the police report; a search of a dwelling requires judicial authorisation or the informed consent of the occupant, given in the presence of a lawyer where the occupant is already detained. Evidence obtained in breach of those requirements is inadmissible under Article 11 of the Judiciary Act, and the exclusion extends to everything derived from it.

The second line is the analysis of the substance. The prosecution must establish not only the gross weight but the degree of purity, because the penalty range and the fine are calculated on the net quantity of pure substance. Failures in the chain of custody between the seizure, the weighing and the laboratory analysis are a recurring and effective ground of defence.

The third is Article 376, which allows a substantial reduction of the sentence where the accused abandons the activity voluntarily and collaborates effectively, and Article 20(2) and Article 21(2) for offenders whose conduct is driven by a serious addiction.

Foreign nationals: expulsion and the European dimension

Article 89 of the Criminal Code provides that prison sentences exceeding one year imposed on foreign nationals without lawful residence shall as a rule be substituted by expulsion from Spanish territory, with a prohibition on return of between five and ten years. The rule admits exceptions where expulsion would be disproportionate having regard to family and social ties.

Where the proceedings originate in a European Arrest Warrant or in a request for judicial cooperation, the defence must operate simultaneously in both jurisdictions. The firm handles European Arrest Warrant proceedings before the Audiencia Nacional and coordinates with local counsel in the issuing State.

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