Drug Houses and Dealing Premises: the Aggravated Offence of Art. 369.1 CP

So-called drug houses —flats or premises used in fact to sell or consume drugs— are one of the most common settings in trafficking proceedings. The conduct has no offence of its own: it is prosecuted as an offence against public health under Article 368 of the Spanish Criminal Code (CP) and, where the place is premises open to the public, it is aggravated under art. 369.1.3 CP. As criminal defence lawyers specialising in drug trafficking, we explain the basic and aggravated offences, the liability of the owner and the occupants, the closure of the premises and the lines of defence.

What a Drug House Is (Art. 368 CP)

Art. 368 CP punishes anyone who carries out acts of cultivation, manufacture or trafficking, or otherwise promotes, encourages or facilitates the illegal consumption of drugs —toxic, narcotic or psychotropic substances— or possesses them for those purposes. A flat or premises become a "drug house" when used for exactly those ends: a point of sale, a place to store the substance, or a place of consumption in exchange for payment.

The penalty for the basic offence depends on the type of substance:

• Substances that cause serious harm to health (cocaine, heroin, MDMA, etc.): imprisonment of three to six years and a fine of one to three times the value of the drug.
• Substances that do not cause serious harm to health (typically cannabis and its derivatives): imprisonment of one to three years and a fine of one to two times the value.

What is decisive is not the property but that acts of trafficking take place inside it. Possessing drugs intended for personal use at one's own home is not a crime; what is punishable is possession for the purpose of trafficking, which the prosecution must establish.

The Aggravated Offence of Art. 369.1.3 CP

Art. 369 CP raises the penalty where certain circumstances are present. The one that bears directly on drug houses is the third of its first paragraph: that the acts are committed in premises open to the public by those in charge of them or their employees. Think of a bar, a club or a leisure venue whose operators or staff exploit its opening to the public to distribute drugs.

The consequence is severe. Art. 369.1 imposes the penalty one degree above that of art. 368 and a fine of up to four times the value of the drug. In practice, for substances that cause serious harm to health, the band rises from three-to-six years to one of six years and one day to nine years' imprisonment.

Alongside the third, art. 369.1 sets out other aggravating circumstances that may coincide in these cases: distribution to minors (the fourth), the notable importance of the quantity (the fifth), or adulteration of the substance (the sixth). On a higher tier, arts. 369 bis and 370 CP punish criminal organisation and extreme seriousness.

Liability of the Owner, the Landlord and the Occupants

One of the most delicate questions is who is liable when drugs are sold in a property. Criminal law requires conscious participation; a mere link to the property is not enough:

• Owner or landlord of the property: simply owning or letting it is not a crime. Liability falls only on someone who knows of the trafficking purpose and nonetheless contributes —knowingly handing over the premises, sharing in the proceeds or facilitating the activity— in which case they may answer as a principal or accomplice under art. 368 CP.
• Occupants of the flat: living in or being present at a drug house does not automatically make anyone a trafficker. It is necessary to individualise what each person was doing: who was selling, who was storing the drugs, who merely lived there or was visiting. The settled case law of the Supreme Court rejects convictions based on mere presence.
• Person in charge or employee of the establishment: this is the typical subject of art. 369.1.3 CP where the acts are committed in premises open to the public.
• Legal person: where the premises belong to a company, it may be liable under art. 31 bis CP, facing penalties that include the closure of its premises and establishments.

Closure of the Premises and Confiscation

Beyond the prison sentence and fine, drug-house proceedings may carry measures affecting the property and the assets:

• Closure of the establishment: the judgment of conviction may order the closure of the premises in which the activity was carried on. This measure may also be adopted as an interim measure during the investigation where there are sufficient grounds, in order to bring the criminal activity to an end.
• Confiscation: under arts. 374 and 127 CP, the drugs, the money, the items seized and the proceeds of the offence are confiscated, together with the instruments used. The seized drug is destroyed once the decision is final, retaining samples for analysis.
• Legal person owning the premises: in addition to liability under art. 31 bis CP, the regime of art. 369 bis CP allows accessory penalties to be imposed on the company, among them the closure of its premises and establishments.

Lines of Defence

The defence in a drug-house case is built on several fronts that should be worked on from the investigation stage:

1. No trafficking purpose: contesting that the drugs were preordained for sale rather than for the occupants' personal use. The quantity, the purity and the absence of individually measured doses, scales, lists or divided cash are decisive.
2. No premises open to the public: where art. 369.1.3 CP is charged, establishing that the property was a closed private dwelling and not premises open to the public, so as to exclude the aggravation and bring the act back to the basic offence of art. 368.
3. Clarifying authorship: identifying who actually carried out the acts of sale, as opposed to those who merely lived in, visited or consumed at the property. Mere presence or cohabitation is not a basis for liability.
4. Validity of the search of the premises: reviewing that the search of the home had the valid consent of the occupier, a reasoned judicial warrant or a case of flagrancy, and was carried out with the legal safeguards (presence of the person concerned or witnesses, court clerk where required). An unlawful search carries with it the invalidity of the evidence obtained.
5. Chain of custody: scrutinising the traceability of the seized substance from seizure to analysis; breaks or material doubts in the custody may deprive the expert report of any effect.
6. Mitigating circumstance of drug dependence: where the defendant acts because of serious addiction, invoking the mitigating circumstance of art. 21.2 CP or, depending on its intensity, the full or partial defence of art. 20.2 CP, with their effect on the penalty and on possible suspension conditional on treatment.