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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.
Also cited as: article 370 Spanish Criminal Code · art. 370 CP · Spanish Penal Code article 370 · artículo 370 del Código Penal.
Wording of Article 370 of the Spanish Criminal Code
The penalty of the next higher degree or of the two next higher degrees to that laid down in Article 368 shall be imposed where:
1. Persons under 18 years of age or persons with a psychical impairment are used in order to commit these offences.
2. The accused are the leaders, administrators or persons in charge of the organisations referred to in circumstance 2 of paragraph 1 of Article 369.
3. The conduct described in Article 368 is of extreme gravity.
Cases are regarded as of extreme gravity in which the quantity of the substances referred to in Article 368 notably exceeds that regarded as of notorious importance, or vessels, boats or aircraft have been used as a specific means of transport, or the conduct indicated has been carried out by simulating international trading operations between undertakings, or the matter concerns international networks devoted to this kind of activity, or where three or more of the circumstances provided for in Article 369.1 are present.
In the cases of numbers 2 and 3 above, a fine of the amount of the value of the drug which is the object of the offence up to three times that value shall also be imposed upon the offenders.
Working translation prepared by Société Juridique from the consolidated Spanish text published by the Official State Gazette. It has no official status: the only authoritative version is the Spanish original, available at the Official State Gazette and reproduced verbatim in our Spanish-language entry for this provision. Source: Organic Law 10/1995 of 23 November, the Spanish Criminal Code.
Sentencing range. The penalty of Article 368 raised by one or two degrees, together with a fine of the value of the drug up to three times that value in the cases of numbers 2 and 3.
Elements of the offence
- A drug trafficking offence under Article 368, which is the presupposition of the aggravation.
- The use of persons under eighteen or of persons with a psychical impairment, in the case of number 1.
- The position of leader, administrator or person in charge of a criminal organisation, in the case of number 2.
- 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.
Defence in this area
If you or your company are facing proceedings in this area, the firm provides defence and prosecution in Alicante and Madrid, with 24-hour assistance to detained persons.
Are you under investigation or facing charges in Spain? Société Juridique acts for foreign nationals throughout Spain, with offices in Alicante and Madrid and a 24-hour custody line. +34 669 30 21 13 or enquire online.
- 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.
Frequently asked questions
What penalty does Article 370 of the Spanish Criminal Code provide for extreme gravity in drug trafficking offences?
The penalty of Article 368 raised by one or two degrees, together with a fine of the value of the drug up to three times that value in the cases of numbers 2 and 3.
What are the elements of the offence under Article 370 of the Spanish Criminal Code?
A drug trafficking offence under Article 368, which is the presupposition of the aggravation. The use of persons under eighteen or of persons with a psychical impairment, in the case of number 1. The position of leader, administrator or person in charge of a criminal organisation, in the case of number 2. One of the situations of extreme gravity exhaustively defined in the provision, in the case of number 3.
What defence strategy applies to a charge under Article 370 of the Spanish Criminal Code?
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.
Is the English text of Article 370 of the Spanish Criminal Code official?
Working translation prepared by Société Juridique from the consolidated Spanish text published by the Official State Gazette. It has no official status: the only authoritative version is the Spanish original, available at the Official State Gazette and reproduced verbatim in our Spanish-language entry for this provision. Source: Organic Law 10/1995 of 23 November, the Spanish Criminal Code.
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