Art. 368 CP: Crimes Against Public Health and Drug Trafficking
In this article
Key Takeaways
- Art. 368 CP
- Personal use
- Nullity of evidence
- Notable importance
Offences against public health under Article 368 of the Spanish Criminal Code punish drug trafficking with penalties that depend on the substance: 3 to 6 years in prison for substances causing serious harm to health (cocaine, heroin, MDMA) and 1 to 3 years for those that do not (cannabis, hashish), with the penalty rising under the aggravating factors of Article 369 CP such as quantities of 'notable importance' or membership of an organisation. Possessing drugs for one's own personal use is not a crime, though it can be an administrative infraction if done in public; the offence requires signs that the drugs were intended for trafficking, such as the quantity, division into doses, or the presence of cash and scales. Defence strategies commonly focus on the lawfulness of searches and wiretaps, the chain of custody, and whether the substance was genuinely intended for personal use.
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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.
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Frequently asked questions
What is the penalty for drug trafficking?
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?
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?
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?
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.
Do you need criminal defense in this area?
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