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.

Art. 368.1 CP — Substances Causing Serious Harm to Health

Article 368.1 of the Spanish Criminal Code punishes with 3 to 6 years' imprisonment and a fine of one to three times the value of the drugs anyone who carries out acts of cultivation, production or trafficking in substances that cause serious harm to health, who otherwise promotes, favours or facilitates their illegal consumption, or who possesses them for those purposes. Neither a completed sale nor proven profit is required.

Art. 368.1 CP — Other Substances (Hashish, Cannabis)

Where the substance does not cause serious harm to health, the same first paragraph of article 368 CP sets 1 to 3 years' imprisonment and a fine of one to two times the value of the drugs. This is the band for hashish, cannabis herb and other cannabis derivatives. The conduct covered is identical: cultivation, production, trafficking, facilitating third-party use and possession with intent to supply.

Art. 368.2 CP — Mitigated Subtype

The second paragraph of article 368 CP 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. For substances causing serious harm, imprisonment drops to a band of 1 year and 6 months to 3 years; for the rest, to 6 months to 1 year. The provision bars the reduction where any circumstance of articles 369 bis or 370 CP applies.

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. Where the sentence imposed does not exceed 2 years and the other requirements of article 80 CP are met, a suspended sentence becomes possible. We examine the case-law requirements in our guide to street dealing and minor drug trafficking under article 368.2.

Art. 369 CP — Aggravating Circumstances

Article 369.1 CP imposes the penalty one degree higher than article 368 and a fine of one to four times the drugs' 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 frequent in practice is the fifth: a notably large quantity.

• 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.
• Participation in other organised activities (2nd), adulteration or mixing that increases the harm (6th) and use of violence or display of weapons (8th).

Art. 369 bis CP — Criminal Organisation

Where the conduct described in article 368 is carried out by members of a criminal organisation, article 369 bis CP imposes 9 to 12 years' imprisonment and a fine of one to four times the drugs' value for substances causing serious harm, and 4 years and 6 months to 10 years with the same fine in the remaining cases. Bosses, managers and administrators of the organisation receive the penalty one degree higher.

The same provision covers the liability of legal persons under article 31 bis CP: a fine of two to five years, or of three to five times the value of the drugs where that figure is higher, if the offence committed by the natural person carries more than five years' imprisonment; and a fine of one to three years, or of two to four times that value, in the remaining cases carrying more than two years.

Art. 370 CP — Extreme Seriousness

Article 370 CP raises the penalty set in article 368 by one or two degrees where minors under 18 or persons with mental disabilities are used to commit the offence, where the accused is a boss, administrator or manager of one of the organisations referred to in article 369.1.2, or where the conduct is of extreme seriousness. In the latter two cases an additional fine of one to three times the drugs' value applies.

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. With the two-degree increase over substances causing serious harm, imprisonment can reach 13 years and 6 months. This is the territory of large-scale cases over international drug trafficking, frequently tried before the National High Court.

How Substances Are Classified

The Criminal Code contains no list of substances: the split between those causing serious harm to health and the rest comes from case law, built on the international drug conventions. The courts place cocaine, heroin, MDMA and synthetic drugs, amphetamines and LSD in the first group; hashish, cannabis herb and other cannabis derivatives in the second. 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.

Article 368 CP is deliberately broad: 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.

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.

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.