Hashish and Marijuana Trafficking (Art. 368 CP): Penalties and Large Quantity
In this article
Key Takeaways
- Basic offence (Art. 368 CP): imprisonment of 1 to 3 years
- Cannabis = a substance that does not cause serious harm
- Large quantity: 2.5 kg hashish / 10 kg marijuana, net weight
- Personal use is not a criminal offence
Hashish and marijuana trafficking is punished under Art. 368 CP as substances not causing serious harm: 1-3 years' imprisonment and a fine of 1-2x the drug's value, lower than cocaine or heroin (3-6 years). Reaching large quantity (notoria importancia) — 2.5 kg hashish or 10 kg marijuana, net weight, not THC-reduced — raises the sentence one degree, roughly 3 to 4.5 years. Personal use is not a crime.
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Hashish and marijuana trafficking is the most common offence against public health before the Spanish courts. Its treatment under criminal law is more lenient than for other drugs because cannabis is considered a substance that does not cause serious harm to health. As criminal defence lawyers specialising in cannabis trafficking, we explain the penalties under Article 368 of the Criminal Code, the large-quantity threshold and the key lines of defence.
What Penalty Applies to Cannabis Trafficking?
Art. 368 CP distinguishes two broad categories of substances. Cannabis — and its derivatives, hashish and marijuana — falls into the category that does not cause serious harm to health, which sets the basic offence at imprisonment of one to three years plus a fine of one to twice the value of the drug. The comparison is telling: cocaine, heroin or MDMA, which do cause serious harm, are punished with imprisonment of three to six years. This lower starting penalty widens the room to avoid a prison sentence through mitigating circumstances, plea agreements and suspended sentences. You can read more in our entry on Article 368 CP.
Why Cannabis "Does Not Cause Serious Harm"
Classification as a substance that does not cause serious harm is not an open-ended health assessment, but a category settled by case law for criminal-law purposes. It has direct consequences: besides the lower base penalty, it shapes the calculation of the large quantity threshold and of the proportional fine, which is set on the drug's value on the illicit market. That is why classifying the substance is always one of the first points examined in the defence.
The Large Quantity Threshold (2.5 kg of Hashish / 10 kg of Marijuana)
The aggravating circumstance of large quantity (notoria importancia) under Art. 369.1.5 CP raises the sentence one degree when the amount is especially large. For cannabis, the Supreme Court uses, as a guideline, 2.5 kg of hashish or 10 kg of marijuana, calculated on the net weight of the substance. Unlike heroin or cocaine, cannabis derivatives are not reduced to active ingredient (THC): that was settled by the Supreme Court's non-jurisdictional plenary agreement of 19 October 2001 and has been maintained by case law ever since. Exceeding that threshold moves the sentence to roughly three years to four years and six months of imprisonment, with a fine of one to four times the value. Two caveats are worth stressing: these are case-law guideline figures, not automatic legal limits, and the relevant weight is the net one, after deducting wrapping and packaging and, for marijuana, the moisture of the unripened plant. Checking this is essential, since it decides whether the sentence falls within the one-to-three-year range or the aggravated one.
Personal Use and Shared Consumption
Using cannabis is not a criminal offence: in public, it is at most an administrative infringement under Organic Law 4/2015. The dividing line with trafficking is not set by an exact quantity, but by whether the drug is intended for third parties. Case law offers guideline figures for personal stockpiling (around 100 g of marijuana or 25 g of hashish), but what is decisive is the presence of indicators of distribution: pre-prepared doses, precision scales, cash broken into small denominations, or people coming and going. Alongside this, the Supreme Court recognises the non-punishable scenario of shared consumption, which excludes the offence when a group of habitual users acquires cannabis to consume it immediately in an enclosed place, with no intent to profit or distribute. We analyse that line in detail in the article on personal use versus trafficking.
Defence Strategies
- Rigorous net weighing: demanding that wrapping and packaging be deducted and, for marijuana, the moisture of the unripened plant, in order to dispute the large-quantity finding and the value of the drug.
- Personal-use purpose: proving, with consumption reports and an explanation of the indicators relied on, that the substance was not intended for trafficking.
- Mitigated form under Art. 368.2 CP: seeking the sentence reduced one degree for the minor scale of the conduct.
- Challenging the evidence: reviewing the lawfulness of the searches and the chain of custody of the seized drugs, under Arts. 588 bis et seq. of the Criminal Procedure Act.
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Official text: article 368 of the Spanish Criminal Code (BOE)
Frequently asked questions
What penalty applies to trafficking hashish or marijuana?
The basic offence under Art. 368 CP for substances that do not cause serious harm to health — a category that includes cannabis — carries imprisonment of one to three years and a fine of one to twice the value of the drug. That is roughly half the penalty for cocaine or heroin (three to six years).
What quantity of hashish counts as a large quantity?
The Supreme Court uses, as a guideline, 2.5 kg of hashish or 10 kg of marijuana, calculated on the net weight of the substance: for cannabis derivatives the quantity is not reduced to active ingredient (THC), unlike for heroin or cocaine. Exceeding that threshold triggers the aggravating circumstance under Art. 369.1.5, which raises the sentence one degree (roughly three years to four years and six months).
Is the weight calculated as gross weight or as THC content?
For hashish and marijuana, the quantity is calculated on the net weight of the substance, not reduced to active ingredient (THC). Under the Supreme Court's non-jurisdictional plenary agreement of 19 October 2001, the reduction to purity applies to heroin, cocaine and other drugs, but not to cannabis derivatives. The defence can nonetheless demand a rigorous net weighing: deducting wrapping and packaging and, for marijuana, the moisture of the unripened plant, since falling below the threshold can turn on exactly that.
Is it a criminal offence to hold hashish or marijuana for personal use?
It is not a criminal offence. Possession for personal use is, at most, an administrative infringement under Organic Law 4/2015 on public safety. The dividing line with trafficking is not quantity, but purpose: what is punished is supplying the drug to third parties.
Can the sentence be reduced for the minor scale of the conduct?
Yes. Art. 368.2 CP allows the sentence to be lowered one degree having regard to the minor scale of the conduct and the offender's personal circumstances. This is a common route in small-scale cases, and it does not apply where the aggravating circumstances of organised crime (Art. 369 bis) or extreme gravity (Art. 370) are present.
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