MDMA and synthetic drug trafficking (art. 368 CP): why they cause serious harm to health and how the charge is defended

So-called designer drugs or synthetic drugs now sit at the centre of many drug-trafficking proceedings. MDMA or ecstasy, methamphetamines and the new psychoactive substances such as synthetic cathinones and cannabinoids raise very specific questions for anyone facing a charge. Why are they punished more heavily than cannabis? Where is the line with personal use? What part does purity play? We explain this from the firm's technical standpoint, without alarmism and without promising outcomes, working from Article 368 of the Spanish Criminal Code and its aggravating factors.

What Article 368 CP punishes

Article 368 CP is the basic offence among the public-health crimes concerning drugs. It punishes anyone who carries out acts of cultivation, production or trafficking, or who otherwise promotes, encourages or facilitates the unlawful use of toxic drugs, narcotics or psychotropic substances, as well as anyone who possesses them for those purposes.

The wording is deliberately broad. It does not require a completed sale or a habitual activity, and it covers a single transaction just as much as a sustained operation. It is enough that the conduct is aimed at spreading the substance to others. That is why possession pre-ordered to trafficking already makes out the offence, and why the debate over the intended destination of the drug is so important in practice. The protected interest is public health in the abstract, so the law does not wait for an actual buyer to be harmed before the conduct becomes punishable.

MDMA and synthetic drugs: substances that cause serious harm

Article 368 distinguishes two groups of substances carrying very different penalties:

• Substances that cause serious harm to health: prison 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: prison of one to three years and a fine.

MDMA or ecstasy, methamphetamines and synthetic cathinones and cannabinoids fall, under the international schedules and settled case law, within the first group: substances that cause serious harm to health. This is the same category as cocaine or heroin. Cannabis and hashish, by contrast, are generally placed in the second. The classification does not depend on the individual case or the quantity seized, but on the nature of the substance, and it is what makes the starting penalty range three to six years.

The fine: from one to three times the value of the drug

Alongside the prison term, Article 368 imposes a proportional fine calculated on the value of the drug, reaching up to three times that value. Setting that value is no minor detail. It is fixed on the basis of valuation reports referring to the price of the substance, and a disproportionate or poorly founded valuation can and should be contested, because it feeds directly into the amount of the fine.

The mitigated sub-type: acts of minor significance

The second paragraph of Article 368 allows the penalty to be reduced by one degree having regard to the minor significance of the act and the personal circumstances of the offender. This is the so-called mitigated sub-type, a proportionality valve designed for less serious situations.

It does not apply automatically. It requires a combined assessment of both factors: that the act is objectively of minor significance (by reason of the quantity, the manner of the conduct or its occasional character) and that personal circumstances justify it, such as a situation of addiction. Fitting a case into this sub-type can make a very significant difference to the penalty, so its defence calls for careful factual analysis.

Personal use and shared use: the line with trafficking

One of the decisive questions is the boundary between trafficking and personal use. Possession of a drug for one's own consumption is not a crime. It may, where appropriate, give rise to an administrative sanction, but it falls outside Article 368, which requires the substance to be intended for others.

Intent to traffic is not simply presumed: it is inferred from indications that must be weighed together. The most frequent are the quantity held in relation to the accused's own pattern of use, division into individual doses or pills, possession of precision scales, divided cash or messages reflecting transactions. None of them is conclusive on its own.

Case law further accepts that shared use among consumers may fall outside the offence where it takes place under strict conditions: a small group of addicts or users, in a closed setting, with no intent to spread the drug to third parties and no profit motive, and with quantities intended for the group's immediate consumption. Establishing this scenario, where it reflects reality, is a legitimate line of defence against a trafficking charge. When facing a charge of this kind, it helps to have lawyers specialising in MDMA and synthetic drug trafficking who can separate the fact from the prejudice.

The aggravating factors: notable quantity, organisation and extreme gravity

Several aggravations operate on top of the basic offence and raise the penalty:

• Notable quantity (art. 369 CP): raises the penalty by one degree when the amount of drug is of notable importance. The Supreme Court has set guideline thresholds for each substance, calculated on the pure substance. It also aggravates, among other situations, distribution in premises open to the public or the introduction of the drug into them.
• Criminal organisation (art. 369 bis CP): where the acts are committed within an organisation devoted to these activities, with reinforced penalties for its members and, to a greater extent, for leaders, managers or administrators.
• Extreme gravity (art. 370 CP): allows the penalty to be raised by one or two degrees in situations of particular seriousness, such as the use of vessels or aircraft, a leadership role in large-scale structures, or quantities that vastly exceed the notable-quantity threshold.

The presence of these aggravating factors must be proved rigorously. A suspicion that an organised structure exists, or that the quantity is high, is not enough: the prosecution must prove the requirements of each one.

Purity, quantity and chain of custody

With synthetic drugs, purity is a decisive factor. MDMA pills vary widely in strength, and what matters for notable quantity is the amount of pure substance, not the gross weight of the tablet. For that reason it is essential to:

• Request the purity analysis from the National Institute of Toxicology, which establishes the actual strength of the substance.
• Compare the result against the Supreme Court thresholds: low purity may leave the amount below the notable-quantity threshold and exclude the aggravating factor.
• Verify the chain of custody from seizure to the laboratory: seals, records of each movement and matching weights. A break may compromise the validity of the physical evidence.

Reviewing the lawfulness of searches, entries and, where applicable, interception of communications completes this evidential examination. The nullity of a step obtained in breach of fundamental rights may carry with it the evidence derived from it. In synthetic-drug cases the laboratory report is often the cornerstone of the prosecution, so any gap in how the sample was sealed, transported, stored or weighed deserves close scrutiny: if the substance analysed cannot be reliably tied to the one seized, its evidential value is undermined at the root.

Defence lines against a synthetic-drug charge

There is no single defence: each case dictates its own strategy depending on the facts and the available evidence. The most common lines, always within respect for the presumption of innocence, are:

• Disputing the destination: arguing personal use or shared use against the trafficking charge, dismantling the indications one by one.
• Purity and quantity: requesting the National Institute of Toxicology analysis to exclude notable quantity or to fit the act into the mitigated sub-type.
• Control of the evidence: verifying the chain of custody and the lawfulness of searches and interceptions, with nullity as the consequence of any breach.
• Individualisation: in cases with several defendants, separating the accused's specific conduct from the whole, because mere association with others does not prove a common plan.
• Assessing the fine: challenging the valuation of the drug that underpins the proportional fine.

Specialist defence with Alonso Sala

A charge of trafficking MDMA or other synthetic drugs calls for a technical response from the outset. At Alonso Sala, a criminal defence firm based in Madrid (calle Velázquez 27) with coverage throughout Spain, we approach proceedings of this kind with rigour, discretion and a detailed analysis of the expert evidence, the purity and the chain of custody. Each matter is studied individually, having regard to its specific circumstances and the legislation in force, to build the defence strategy that best fits the facts.