Article 369 Spanish Criminal Code: Aggravated Drug Trafficking

Article 369 of the Spanish Criminal Code raises by one degree the penalties for drug trafficking under article 368 and adds a fine of one to four times the value of the substance where any of eight circumstances is present. Two of them account for almost all aggravated cases: notorious quantity, which the case law fixes by reference to a multiple of the daily consumption of five hundred users for each substance, and commission in premises open to the public. Because the increase converts a sentence capable of suspension into one that must be served, the exclusion of the circumstance is the objective of the defence.

Wording of Article 369 of the Spanish Criminal Code

Elements of the offence

1. All the elements of the offence in article 368: acts of cultivation, manufacture, trafficking, promotion, favouring or facilitation of consumption, or possession for those purposes.
2. One of the eight circumstances, each of which must be pleaded specifically and proved. They do not accumulate in effect: one suffices, and a second does not raise the penalty further under this article.
3. For notorious importance, a net weight of pure substance exceeding the threshold established by the case law for each substance, which is calculated on the pure content and not on the gross weight seized.
4. For premises open to the public, that the offender is responsible for the premises or an employee, and that the premises were used as a channel for the distribution rather than being merely the place where an isolated transfer occurred.

Defence strategy

The purity analysis and notorious importance. The threshold is fixed on the weight of pure substance, so the analysis is the decisive document. The defence examines the purity determination, the margin of error stated by the laboratory, whether the samples were homogenised, whether every package was analysed or only some, and whether the chain of custody from the seizure to the laboratory is complete. Where the calculation falls below the threshold once the margin of error is applied, the circumstance is excluded and the sentence returns to a bracket that permits suspension.

Premises open to the public. The circumstance requires that the premises be used as an instrument of distribution by those who run them. An isolated transfer in a bar, a transaction between customers, or a sale by an employee acting on his own account outside working hours does not satisfy it. The defence establishes the role of the accused in the business, the number of transactions attributed to the premises and whether any customer was ever identified.

Consumption, shared consumption and the absence of trafficking. Before the aggravating circumstance is reached, the basic offence must be established. Possession for one’s own consumption is not an offence, and shared consumption among addicts in a private place has been held not to constitute trafficking. The defence documents the accused’s own dependence with clinical evidence, compares the quantity with the pattern of consumption and examines whether the indicators relied on, such as scales, cash and packaging, admit an innocent explanation.

Addiction, reparation and the length of the sentence. Where the offence was committed under the influence of a serious dependence, the partial defence of article 21.2 reduces the sentence by one or two degrees, and enrolment in a treatment programme documented before trial is what makes that argument credible. Combined with an agreed disposition, this is the ordinary route to bringing a sentence back within the range at which suspension conditional on treatment becomes possible, which for a foreign defendant is the difference between serving a sentence in Spain and returning home.

• Drug offences: defence service
• Article 368: drug trafficking
• Article 553: entry and search without a warrant
• Spanish-language entry

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.