Cultivation and Production of Drugs in Marbella

Cultivation as an autonomous typical conduct: not an unpunishable preparatory act

The Supreme Court has clearly held that cultivating plants from which narcotic substances are extracted does not constitute an unpunishable preparatory act prior to the actual offense of trafficking, but rather a conduct expressly included within the definition of the offense under Article 368 of the Criminal Code, placed on the same footing as elaboration, manufacture, and trafficking proper. This means that mere proof of cultivation — irrespective of whether the substance was actually sold, distributed, or even harvested — may already satisfy the requirements of the offense, provided none of the grounds for non-criminality discussed below are present. Expert evidence on the number of plants, their stage of development, the expected average yield of active ingredient, and the growing conditions — indoor or outdoor — is consequently decisive from the very first search and seizure proceedings.

Cultivation for personal consumption: non-criminality and its limits

Just as personal drug consumption does not fall within the offense of Article 368 of the Criminal Code, case law recognizes the non-criminal nature of cultivation intended exclusively for one's own consumption, on the grounds that the element of promoting or facilitating another's consumption required by the provision is absent. This non-criminality is not, however, unlimited: the number of plants cultivated, their correlation with a reasonable and proven personal consumption, the existence of tools for distribution or division into portions, and the absence of indicia of commercialization are the parameters against which courts assess, case by case, whether the cultivation remains within the limits of non-criminal self-consumption or whether, owing to its volume or the surrounding circumstances, it must be classified as cultivation aimed at trafficking.

"Shared self-consumption" and cannabis social clubs: the Ebers case doctrine

Case law had previously recognized, alongside the non-criminality of individual self-consumption, that of so-called shared consumption: the collective acquisition or cultivation of drugs by a small group of habitual users, for immediate consumption in an enclosed space, without profit motive and without public repercussion. The Plenary of the Second Chamber of the Supreme Court, however, marked a decisive turning point when it examined the operation of a large cannabis association:

"...el cultivo y distribución organizada, institucionalizada y con vocación de persistencia en el tiempo de cannabis entre un colectivo... colma las exigencias típicas del artículo 368 del Código Penal."

(The Court held that the organized, institutionalized cultivation and distribution of cannabis among a group, intended to persist over time, satisfies the requirements of the offense under Article 368 of the Criminal Code.) This doctrine, reiterated in later rulings, specifies that the non-criminality of shared consumption requires the cumulative concurrence of several requirements: that the participants be habitual users or addicts; that the consumption take place in an enclosed space, hidden from third parties outside the group; that the quantity of drugs be minimal, suited to immediate consumption rather than storage; and that the group be small and identifiable, without any intention of opening itself indiscriminately to new members. When the associative structure becomes institutionalized, allows the stockpiling of quantities for several months, remains open to new members, or generates a real risk of the drug spreading to third parties outside the original core group, case law holds that the framework of shared self-consumption is exceeded and that the conduct must be classified as facilitating illegal consumption, criminally relevant under Article 368 of the Criminal Code, regardless of the absence of a profit motive.

Elaboration and manufacture: clandestine laboratories and synthetic drugs

Alongside the cultivation of plants, Article 368 of the Criminal Code punishes with equal severity the elaboration and manufacture of narcotic substances, conducts typical of clandestine laboratories dedicated to the synthesis of designer drugs and other psychotropic substances. Investigating these proceedings requires expert analysis of particular technical complexity — identification of chemical precursors, the facility's production capacity, the stage of development of the synthesis process at the time of the intervention — on which the classification between a completed offense, an attempted offense, or mere preparatory acts frequently depends, with respect to substances whose elaboration process had not been completed. The possession of chemical precursors subject to administrative control, when their intended use for manufacturing narcotics is proven, may additionally give rise to further liability under the specific regulations on scheduled substances.