Art. 368 CP: Crimes Against Public Health and Drug Trafficking
Last updated:
listIn this article
lightbulbKey Takeaways
- check_circleArt. 368 CP
- check_circlePersonal use
- check_circleNullity of evidence
- check_circleNotable importance
The offence against public health, commonly known as drug trafficking, is one of the most heavily prosecuted offences in the Criminal Code, with some of the most severe penalties. As criminal lawyers experienced in crimes against public health and drug trafficking, we analyse the most recent Supreme Court case law.
Types of Offence and Substances
Article 368 distinguishes between substances that cause serious harm to health (cocaine, heroin, psychotropic drugs) and those that do not (hashish, marijuana). This distinction is vital, since the minimum penalty varies from 3 years to 1 year in prison respectively.
Lines of Defence
The defence does not always consist of denying possession. Often, the most effective line of defence is to attack the validity of the evidence (the nullity of searches without a court order, a break in the chain of custody) or to argue that the substance was intended for personal use or shared consumption — conduct that is not an offence in Spain.
Critical Aggravating Factors
"Notable importance" and membership of a criminal organisation can push penalties above 9 or 10 years. Fighting these aggravating factors is the absolute priority of the technical defence.
Arrested for Drug Trafficking?
Technical defence in crimes against public health is key: the nullity of wiretaps, a break in the chain of custody and personal use. Our lawyers experienced in drug trafficking in Madrid focus exclusively on this type of proceedings.
📞 Call us: +34 91 078 65 74
⚖️ Need a criminal defence lawyer?
If you are facing a charge related to drugs and public health, our firm can help. A firm dedicated exclusively to criminal law.
Frequently asked questions
What is the penalty for drug trafficking?expand_more
It depends on the substance: those that cause serious harm to health (cocaine, heroin, MDMA) carry 3 to 6 years in prison; those that do not (cannabis, hashish) carry 1 to 3 years in prison. The penalty rises with the aggravating factors of art. 369 CP.
Is possession of drugs for personal use a crime?expand_more
No. Possessing drugs for your own consumption is not a crime, but a possible administrative sanction if it takes place in public. The offence arises when there are signs that the drugs are intended for trafficking: the quantity, division into doses, cash or scales.
What aggravating factors exist in drug trafficking?expand_more
Art. 369 CP aggravates the penalty for quantities of 'notable importance', membership of an organisation and distribution to minors or in educational centres, among others. Art. 370 CP provides for 'extreme seriousness' (leading an organisation or using vessels), with the highest penalties.
How is a drug trafficking charge defended?expand_more
By attacking the lawfulness of searches, entries and wiretaps (their nullity can invalidate all the evidence), the chain of custody and the expert purity report, and by disputing whether the drugs were intended for trafficking rather than personal use. The mitigating factor of drug addiction can reduce the penalty.