Article 368 Spanish Criminal Code: The Drug Trafficking Offence (2026)

Article 368 of the Spanish Criminal Code (CP) is the gateway to every drug trafficking prosecution in Spain — from a street sale of a few grams to multi-tonne shipments tried before the National High Court. It punishes anyone who carries out acts of cultivation, production or trafficking in toxic drugs, narcotics or psychotropic substances, and anyone who otherwise promotes, favours or facilitates their illegal consumption, including mere possession for those purposes. As criminal defence lawyers specialised in drug offences, we explain how the penalty is scaled by substance, what the mitigated subtype of 368.2 is and when the aggravated forms of articles 369 and 370 CP come into play.

What Article 368 Says: Two Penalty Bands

The provision does not set a single penalty. It scales it according to the nature of the substance:

• Substances causing serious harm to health: imprisonment of 3 to 6 years and a fine of one to three times the value of the drugs.
• All other cases (substances not causing serious harm): imprisonment of 1 to 3 years and a fine of one to two times that value.

The offence is deliberately broad: it requires neither a completed sale nor proven profit. Any act suitable to promote, favour or facilitate third-party consumption is enough. That is why most trials are fought on two fronts: whether the substance causes serious harm to health, and whether possession was destined for trafficking or for personal use.

Serious Harm to Health vs. the Remaining Substances

The Criminal Code contains no list of substances. The classification comes from case law, built on the international drug conventions. In practice:

• Causing serious harm to health (3 to 6 years): cocaine, heroin, MDMA and synthetic drugs, amphetamines and LSD, among others.
• Not causing serious harm (1 to 3 years): hashish, cannabis herb and other cannabis derivatives.

The difference is decisive: for the same conduct, the sentencing range moves from 1-3 years to 3-6 years. Our guide to cocaine trafficking penalties in Spain breaks down the full scale for the substance behind most convictions.

The Conduct Covered: from Cultivation to Possession with Intent to Supply

Article 368 covers the entire cycle: growing, producing, transporting, selling, giving away and even simple possession destined for trafficking. Two essential points, especially relevant for foreign nationals facing charges in Spain:

1. Personal use is not a crime. Possession for one's own consumption is not criminally punishable; it may attract an administrative fine when it occurs in public places (art. 36.16 of Organic Law 4/2015), but it does not carry prison.
2. Intent to supply is proven through circumstantial evidence. The quantity seized, division into individual doses, precision scales, cash in small denominations or sales notes are the indicators the prosecution relies on — and the first ground the defence must contest.

Nor does the offence require the operation to succeed: the courts treat it as a danger offence completed once drugs destined for others are available to the accused, which leaves very little room for attempt.

The Mitigated Subtype of Article 368.2

The second paragraph of article 368 allows the courts to impose the penalty one degree lower in view of the minor significance of the facts and the personal circumstances of the offender. In practice:

• Substances causing serious harm: imprisonment drops from 3-6 years to a range of 1 year and 6 months to 3 years, opening the door to a suspended sentence where the term does not exceed 2 years and the other requirements of article 80 CP are met.
• Remaining substances: from 1-3 years to a range of 6 months to 1 year.

This is the natural route for small-scale street dealing: isolated sales of small doses by people with no structure or relevant role in distribution, often users funding their own addiction. The provision itself bars the reduction where the circumstances of articles 369 bis or 370 CP (criminal organisation and extreme seriousness) are present. We examine the case-law requirements in our guide to street dealing and minor drug trafficking under article 368.2.

Aggravating Circumstances of Article 369: One Degree Up

Article 369.1 CP imposes the penalty one degree higher and a fine of one to four times the drug's value where any of its eight circumstances applies. For substances causing serious harm, imprisonment rises to 6 to 9 years; for the rest, to 3 years to 4 years and 6 months. The most common in practice:

• Notably large quantity (5th): the flagship aggravation. Supreme Court case law sets the thresholds — always on the pure substance or active ingredient, never gross weight — at around 750 grams of cocaine, 300 grams of heroin, 2.5 kilograms of hashish or 10 kilograms of cannabis herb.
• Supplying minors under 18 (4th), persons with mental disabilities or people undergoing detoxification or rehabilitation treatment.
• Premises open to the public (3rd): where the offence is committed by their owners, managers or employees (bars, nightclubs, shops).
• Schools, prisons, military facilities or rehabilitation centres (7th), or their surroundings.
• Status of the offender (1st): an authority, public official, health professional, social worker or teacher acting in the exercise of their duties.
• Adulteration or mixing that increases the harm (6th) and use of violence or display of weapons (8th).

Criminal Organisation (Art. 369 bis) and Extreme Seriousness (Art. 370)

The two top tiers carry the heaviest drug penalties in the Spanish system:

• Article 369 bis CP — Criminal organisation: imprisonment of 9 to 12 years and a fine of one to four times the drug's value for substances causing serious harm (4 years and 6 months to 10 years in the remaining cases). Bosses, managers and administrators of the organisation receive the penalty one degree higher.
• Article 370 CP — Hyper-aggravation: the penalty one or two degrees above article 368 where minors under 18 or persons with mental disabilities are used to commit the offence, where the accused heads one of the organisations referred to in article 369.1.2, or where the conduct is of extreme seriousness. With the two-degree increase, imprisonment can reach 13 years and 6 months, plus an additional fine of one to three times the drug's value.

The article itself defines extreme seriousness: a quantity notably exceeding the 'notably large' threshold, use of ships, vessels or aircraft as a specific means of transport, sham international trade operations between companies, international networks dedicated to trafficking, or the combination of three or more circumstances of article 369.1. This is the territory of the large-scale cases over international drug trafficking, frequently tried before the National High Court.

Penalty Table: Article 368 and Related Provisions

Defence Strategies

1. Personal use rather than trafficking: proving the accused is a user (toxicology reports, treatment records) and the absence of sale indicators can take the conduct outside the offence altogether.
2. Purity analysis: the thresholds for the 'notably large quantity' aggravation are calculated on the pure substance. Low purity can defeat the aggravation of article 369.1.5 — and with it, up to 3 extra years in prison.
3. Nullity of searches and wiretaps: most of the evidence originates in home searches, phone interceptions or the opening of parcels. A court order lacking sufficient reasoning drags down all derived evidence.
4. Chain of custody: discrepancies in weight or seals between the seizure and the laboratory undermine the physical evidence.
5. Specific mitigation routes: the mitigated subtype of 368.2, the mitigating circumstance of severe addiction (art. 21.2 CP), or the reductions of article 376 CP: active cooperation with the authorities after abandoning the activity, or completed detoxification of a drug-dependent defendant where the quantity is neither notably large nor of extreme seriousness.

You will find the full analysis of the offence, with the evidentiary strategy explained step by step, in our guide to public health offences and drug trafficking in Spain.