Criminal Lawyers for Heroin Trafficking Defence

Heroin trafficking carries some of the most severe penalties in Spanish drug crime law because heroin is classified as a substance that causes serious harm to health (Art. 368 CP). The base penalty is 3 to 6 years imprisonment, significantly higher than for cannabis or hashish.

Legal Framework

Heroin —and, with it, the other opiates, including fentanyl— is classified as a substance that causes serious harm to health, which places it in the highest bracket of Art. 368 CP. The protected legal interest is public health, and the classification as "serious harm" not only raises the base penalty but also affects all the aggravating thresholds. As with the rest of drugs, what matters for those thresholds is not the gross weight but the pure content: street heroin is typically cut with additives, reducing its purity to around 15-30%, so an independent analysis of the pure content can decisively alter the legal classification.

Penalties

The base penalty is prison of 3 to 6 years and a fine proportional to the value of the drug. The notoria importancia (Art. 369 CP), which the Supreme Court sets for heroin at around 300 grams of pure substance, raises the penalty to the next higher degree, the 6 to 9 years range. Membership of a criminal organisation (Art. 369 bis CP) aggravates it further, to 9 to 12 years, with the next higher degree —12 to 18 years— for its leaders, managers or administrators; and Art. 370 CP raises the penalty of Art. 368 by one or two degrees in cases of extreme gravity, up to 13 years and 6 months. There are also specific subtypes when the drug is distributed to minors or in educational or penitentiary centres. Because the thresholds are calculated on pure content, the purity analysis is often the single most consequential point of the case.

Defence Strategies

Our defence focuses on: demanding independent purity analysis (official lab results can be challenged); arguing drug addiction as a mitigating or exempting circumstance (Arts. 20.2, 21.1-2 CP) —heroin is the substance where this carries the greatest weight, since many of those accused are themselves addicts selling to fund their own consumption—; steering the case toward the suspension of the sentence conditioned on a detoxification programme (Art. 80.5 CP), available for sentences of up to five years; challenging the attribution of possession (especially in shared spaces or vehicles); and scrutinising surveillance and arrest procedures for constitutional violations, including the nullity of phone taps lacking objective grounds.

Procedure and competent court: from the Investigating Court to the National High Court

Heroin trafficking is punished under Article 368 of the Criminal Code as conduct that causes serious harm to health, with a prison term of three to six years and a fine. The investigation phase falls to the Investigating Court (Juzgado de Instrucción) of the place where the offence was committed, which directs the inquiry, decides on precautionary measures and, once concluded, issues the order opening the trial or dismissing the case. The defence takes part from the first statement, sets its position on pre-trial detention and scrutinises the evidence before it hardens into evidence for the prosecution.

Which court holds the trial depends on the penalty in the abstract. Where the custodial penalty does not exceed five years, the Criminal Court (Juzgado de lo Penal) hears the case; where it exceeds that threshold, as in the aggravated scenarios of Articles 369 or 369 bis, the Provincial Court (Audiencia Provincial) is competent. This boundary matters because it shapes the composition of the court and, in part, the later regime of appeals. Correctly identifying the applicable offence and the penalty in the abstract is therefore a question of jurisdiction, not merely of legal classification.

There is a special rule of major importance: where trafficking is carried out by organised gangs or groups and produces effects in places belonging to different Provincial Courts, jurisdiction may fall to the National High Court (Audiencia Nacional) under Article 65.1(d) of the Organic Law of the Judiciary. Both requirements are cumulative: it is not enough that more than one person took part, that there were multiple acts, or that the operation has an international dimension, because internationality is not in itself a criterion of jurisdiction. The National High Court also hears, under Article 65.1(e) LOPJ, offences committed outside national territory whose trial falls to the Spanish courts. Disputing whether those conditions are met is a meaningful line of defence, because the answer determines which court will try the case and a misallocation is challenged through a declinatory plea.

Forensic analysis of the substance: testing, purity, net weight and chain of custody

In heroin trafficking, the decisive evidence is not how the substance looks but its laboratory analysis. The expert report must establish that the seized material is in fact heroin, its degree of purity and the net weight of the active substance, not the gross weight including adulterants. This distinction is essential because the assessment of seriousness and, where relevant, the finding of large quantity under Article 369 depend on the amount of pure drug, in line with the thresholds that case law applies as a guide. A report that records only gross weight, or that fails to state purity clearly, is open to challenge.

Chain of custody is the second axis of scrutiny. The path of the substance from seizure to the laboratory and to trial must be reconstructable without gaps or contradictions: who seized it, how it was sealed, how it was transported, who weighed and analysed it, and how it was stored. Any break, weighing error, mismatch between the seizure record and the report, or doubt about the identity of what was analysed opens the door to questioning the integrity of the evidence and its probative value. The defence reviews each of these points individually.

Alongside the analysis, the lawfulness of the methods used to obtain evidence conditions all derivative proof. Entries and searches and the interception of communications affect fundamental rights protected by Article 18 of the Constitution and are governed by Articles 588 bis and following of the Criminal Procedure Act, which require a reasoned judicial decision and respect for proportionality, specificity and necessity. A boilerplate order, an interception lacking sufficient grounds or a search carried out outside the legal safeguards may lead to the exclusion of the evidence and, through the connection of unlawfulness, of everything derived from it.

Addiction, criminal responsibility and the specific mitigation of Article 368.2

Heroin addiction may bear on criminal responsibility. Where, at the time of the offence, dependence is so intense that it cancels the ability to understand the unlawfulness of the conduct or to act in accordance with that understanding, the full defence of Article 20.2 of the Criminal Code may apply; where that ability is diminished but not cancelled, the incomplete defence of Article 21.1 in connection with Article 20.2 is available. And where the person acts because of serious addiction to drugs, the mitigating circumstance of Article 21.2 comes into play. These routes require proof: medical and expert reports on the degree of dependence and its link to the offence being tried.

A different and often decisive matter is the attenuated sub-type of Article 368.2. This allows the penalty to be lowered by one degree, taking into account the minor nature of the act and the personal circumstances of the offender. It is the tool designed for small-scale dealing, frequently tied to the defendant's own consumption, and applying it calls for an overall assessment: one of the two circumstances alone is not enough, since the court weighs both the objective seriousness of the act and the personal profile. The defence must build and document both elements from the investigation stage.

These circumstances are not mutually exclusive alternatives. A well-planned strategy may combine the mitigation for serious addiction under Article 21.2 with the sub-type of Article 368.2, while also steering the case towards detoxification treatment and towards the possibility of suspending enforcement of the sentence where the legal requirements are met. The aim is for the criminal response to reflect the true seriousness of the act and the personal situation of someone who suffers from dependence, within what the law allows.

Limitation period for heroin trafficking

The limitation period extinguishes criminal liability through the passage of time and is calculated, under Article 131 of the Criminal Code, by reference to the maximum penalty laid down for the offence. With heroin it is worth starting from a firm point: because it is a substance that causes serious harm to health, the basic offence of Article 368 carries three to six years' imprisonment, so it does not fall within the five-year limitation bracket. That is not the correct calculation.

For the basic offence of Article 368 in its serious-harm form, with a penalty of three to six years' imprisonment, the limitation period is ten years. In the aggravated scenarios, depending on the maximum penalty in the abstract, the period may be ten years, fifteen, or even twenty years in the most serious Article 370 scenarios involving leadership of the organisation; the calculation should always be anchored to the specific sub-type that applies, because aggravation for large quantity, organisation or extreme seriousness raises the penalty framework and, with it, the limitation period.

Time begins to run on the day the offence was committed and is interrupted when the proceedings are effectively directed against the person, on the terms of Article 131 itself. It is therefore essential to fix the date of the events precisely and to check whether the procedural acts relied on as interruptions meet the legal requirements. A rigorous analysis of the period, anchored to the sub-type actually applicable, is a line of defence that should be examined in every heroin trafficking case.