Heroin Trafficking in Spain: Penalties, Aggravations and Defence (Art. 368 CP)

Heroin is, alongside cocaine, the textbook substance that the Spanish Criminal Code (CP) treats as one that causes serious harm to health. That is why its trafficking is punished within the most severe band of Article 368 CP: prison of three to six years for the basic offence, as against the lower band reserved for substances that do not cause such serious harm. Around that offence there is also a feature that is almost constant in practice: many of those accused are people with a serious dependency who sell small amounts to fund their own consumption. Far from being incidental, that fact opens decisive routes to mitigation. In this article we explain what the offence punishes, where the quantity thresholds lie, how the penalties are aggravated and what role addiction plays in the defence. You can read more on our page about heroin trafficking.

The basic offence under Article 368 CP

Article 368 CP punishes anyone who carries out acts of cultivation, production or trafficking, or who otherwise promotes, encourages or facilitates the illegal consumption of toxic drugs, narcotics or psychotropic substances, or who possesses them for those purposes. The provision draws two main penalty bands depending on the substance:

• Substances that cause serious harm to health (heroin, cocaine and the like): prison of three to six years and a fine of the value of the drug, up to three times over.
• Substances that do not cause such serious harm (e.g. cannabis): prison of one to three years and a fine.

Heroin falls beyond dispute within the first category. The key point is that the offence does not require a completed sale or any actual profit: possession with intent to traffic is enough, that is, holding the substance with the aim of passing it to others. This is why the intended destination of the drug — personal use versus sale — is often the real battleground of the case.

Personal use and the possession threshold

Consuming heroin is not a crime in Spain; trafficking is. The dividing line lies in the destination of the substance. Where the amount held is consistent with personal consumption and there are no other indications of dealing, the conduct is not a criminal offence, without prejudice to a possible administrative penalty for consumption or possession in a public place.

The case law works with a guideline personal-use threshold for heroin of around three grams of pure substance, calculated from the average daily consumption over roughly five days. It is not an automatic figure: the court also weighs how the drug is presented (individual doses, scales, lists, divided cash), the defendant's status as a user and the body of circumstantial evidence. Below that limit, and absent other indicators of dealing, possession for personal use can be argued on solid ground.

Purity changes everything

A technical point with enormous impact: both the personal-use threshold and the "notable importance" threshold are calculated on the pure heroin, not on the gross seized weight. Street heroin is usually heavily adulterated (cut with other substances), so a single package may carry a high gross weight and yet a far smaller amount of active substance.

Hence the importance of challenging the analysis and the chain of custody:

• Verifying that the expert analysis correctly determines the base content (the actual percentage of heroin), not just the total weight.
• Reviewing the traceability of the sample from seizure to laboratory: seals, weighings, identification and custody.
• Checking whether the recalculated purity places the case below the Article 369 CP threshold, or even below the personal-use limit.

An error in this calculation can be the difference between the basic offence and an aggravated sub-type, or between a crime and no offence at all.

Aggravations: notable importance and organisation

The penalties of Article 368 CP rise with the circumstances of Article 369 CP, which imposes the next higher degree of penalty in situations such as a notable importance in quantity, distribution to minors, adulteration that increases the harm, or the offender's connection to premises open to the public. For heroin, notable importance is set by the case law at around 300 grams of pure substance, which raises the penalty to a band of roughly six to nine years.

One step above sits Article 369 bis CP, which punishes membership of a criminal organisation devoted to trafficking: for serious-harm substances, prison of nine to twelve years and a fine of up to four times the value, with heavier penalties for leaders, managers or administrators. The defence must carefully distinguish a true organisation (a stable structure, division of roles, an aim of permanence) from mere joint participation or occasional co-authorship, which does not trigger this aggravation.

The lesser-gravity sub-type for small-scale dealing (Art. 368.2 CP)

To counterbalance the aggravations, Article 368 itself contains a downward valve. Article 368.2 CP allows the court to impose the next lower degree of penalty (prison of roughly one and a half to three years) where two requirements are met: the minor gravity of the act and the personal circumstances of the offender.

It is the usual route for petty dealing: sales of very small amounts, often by people who are themselves users and with no structure behind them. The defendant's status as an addict reinforces the application of this sub-type, which appreciably reduces the starting penalty range. It does not apply, however, where any of the Article 369 CP circumstances is present.

Drug addiction as the backbone of the defence

This is the most distinctive angle of these cases. Many of those accused of heroin trafficking are people with a serious addiction who sell to pay for their consumption. The Criminal Code offers several routes that recognise that reality:

• Mitigation for serious addiction (Art. 21.2 CP): where the defendant acts because of a serious dependency on the substance, the penalty should be mitigated. It requires proof of the link between the addiction and the offence, not merely the status of a user.
• Partial defence (Art. 21.1 read with 20.2 CP): if the dependency intensely affects the person's faculties at the time of the act, it allows the penalty to be lowered by one or two degrees, with a far greater effect than the simple mitigating circumstance.

Proving the addiction (medical reports, treatment histories, expert evidence) is therefore as important a piece as the argument over quantity or purity.

Treatment-based suspension and effective cooperation

Beyond mitigation, there are two instruments that can completely change the outcome for an addicted defendant:

• Suspension for rehabilitation (Art. 80.5 CP): it allows the suspension of custodial sentences of up to five years where the offence was committed because of addiction, conditional on the convicted person following and not abandoning a rehabilitation programme. It is a specific route, distinct from ordinary suspension, designed precisely to steer the addict towards treatment rather than imprisonment.
• Effective cooperation (Art. 376 CP): the courts may impose the penalty lowered by one or two degrees on a person who voluntarily abandons their criminal activities, presents themselves to the authorities confessing the facts and actively cooperates to prevent the offence, obtain evidence or identify other parties involved. It is a heavily considered decision that demands careful advice.

Combined with the addiction-based mitigation and the small-scale-dealing sub-type, these mechanisms can land the outcome in suspended, treatment-oriented sentences.

Specialist criminal defence in drug offences

A heroin-trafficking case does not come down to the weight of what was seized. The real purity, the destination of the substance, how the quantity is classified and, above all, the defendant's status as an addict open up room for defence that is worth exploring from the very first moment, before any statement or guilty-plea decision.

Alonso Sala is a firm dedicated exclusively to criminal law, based at calle Velázquez 27 in Madrid and covering the whole of Spain. We study the drug analysis, the chain of custody and the defendant's personal situation to build the most favourable strategy in each case.