Article 368 Spanish Criminal Code: Drug trafficking

Article 368 of the Spanish Criminal Code penalises the cultivation, production, trafficking, promotion or facilitation of the consumption of drugs by others, and also their mere possession where that possession is intended for onward supply. Spanish law does not criminalise consumption itself, which is why the decisive question in almost every case is whether the quantity held was destined for the accused personally or for third parties.

Wording of Article 368 of the Spanish Criminal Code

Elements of the offence

1. A substance falling within the international conventions and Spanish schedules, classified according to whether it causes serious harm to health.
2. One of the conduct verbs: cultivation, production, trafficking, promotion, encouragement or facilitation of consumption by others.
3. In cases of possession, an intention to supply, which must be proved and cannot simply be presumed from the quantity held.
4. Quantity and purity of the substance, established by official laboratory analysis.
5. Intent. Consumption and possession for personal use are not criminal offences under Spanish law.

Defence strategy

Possession for personal use. This is the principal line of defence. The prosecution must prove an intention to supply. Accredited addiction, a quantity consistent with the accused own consumption over a reasonable period, the absence of scales, packaging materials or cash, and the absence of any contact suggestive of dealing all support personal use. The reference figures published by the National Institute of Toxicology serve as guidance but do not create a presumption.

Purity of the substance. Penalties, and above all the aggravating circumstances of Article 369, are calculated on the pure substance and not on gross weight. Where the analysis fails to state purity, or where the sample analysed was not representative, the aggravated form cannot be applied. A counter-analysis should be requested as a matter of course.

Chain of custody. Seizure, weighing, sealing, transfer and analysis must be documented without interruption. Discrepancies in weight or in the number of items between the police record and the laboratory report, and defects in the seal, undermine the evidential value of the entire body of evidence.

Lawfulness of the search. Most of these cases originate in a vehicle stop, a personal search or a house search. Where the search of a dwelling was carried out without judicial authorisation or valid consent, the evidence is void under Article 11.1 of the Organic Law on the Judiciary and that nullity extends to everything derived from it.

Reduction by one degree for minor significance. The second paragraph of Article 368 permits a reduction where the act is of minor significance and the personal circumstances of the offender so warrant. Small quantities, the absence of any organisation, and a documented programme of treatment for addiction are the factors that persuade a court to apply it.

Mitigation for treatment and cooperation. Article 376 allows a reduction of one or two degrees where the offender has voluntarily abandoned the activity, has actively cooperated with the authorities, or has successfully completed a detoxification programme. For a foreign client this can be the difference between a suspended sentence and custody.

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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.