Drug Trafficking Offences Specialists in Marbella

Possession for personal use: the boundary with non-criminality

Case law excludes from criminal sanction the possession of drugs intended exclusively for personal use or for shared consumption among addicts in a closed setting, on the understanding that in such cases the element of promoting, encouraging or facilitating consumption by others — required by the offence — is absent. Technical defense in this area is built around a set of indicators that judicial practice has been consolidating: the quantity of drugs seized in relation to the proven average daily consumption, the existence or otherwise of distribution instruments — precision scales, packaging material, dosage bags — the discovery of accounting notes or fractioned amounts of cash, and the proven status of the accused as a habitual user, a matter on which the forensic medical or toxicological report included in the case file proves decisive.

The mitigated sub-type under art. 368, second paragraph, CP

Article 368 CP itself allows for the imposition of a penalty one degree lower, taking into account the minor significance of the act and the personal circumstances of the offender. This is a regulated power, not a discretionary favor, requiring the joint concurrence of an objective element — the minor significance of the act, assessed in light of the quantity involved and the accused's position in the distribution chain — and a subjective element referring to their personal circumstances, among which case law pays particular attention to the status of a small-scale drug dealer or "camello" (street-level drug seller) at the last link of the distribution chain, with no relevant prior record and with their own addiction problems. We work systematically with this sub-type in every proceeding involving reduced quantities, since it frequently makes the difference between an effective prison sentence and a sentence eligible for suspension.

Aggravated sub-types: notorious quantity, organized crime and vessels (arts. 369 and 369 bis CP)

Article 369 CP imposes a penalty one degree higher when, among other circumstances, any of the following are present: the introduction or distribution of the substance in educational centers, penitentiary establishments or military units; the use of minors or persons with impaired mental faculties; the use of a vehicle intended for transport; the offender's membership of the security forces; and, of particular practical relevance, the "notoria importancia" (notorious quantity — a statutory aggravating threshold based on the amount of the substance involved) of the quantity of the substance that is the object of the offence.

The threshold for notoria importancia is not fixed by law, but has instead been determined by the Agreement of the Non-Jurisdictional Plenary Session of the Second Chamber of the Supreme Court (Tribunal Supremo) of 19 October 2001, based on a report from the National Institute of Toxicology, taking as a reference five hundred daily consumption doses of each specific substance. When, in addition, the quantity notably exceeds that threshold, Article 370 CP allows the penalty to be raised by one or two additional degrees, which requires a rigorous expert analysis of the net weight and purity of the substance seized — the true technical battleground of the defense in higher-value proceedings.

Article 369 bis CP raises the penalty to imprisonment of nine to twelve years when the acts are carried out by persons who are members of a criminal organization, with an additional penalty impact for those who direct the organization. In these cases, the distinction — frequently decisive for sentencing — between a criminal organization or group under Article 570 bis and ter CP and simple co-offending or joint perpetration among several persons without structure or permanence becomes central, a matter on which the Supreme Court requires specific reasoning that cannot be inferred merely from the number of participants.

Undercover agent and agent provocateur: the boundary of lawful investigation

A substantial part of drug trafficking investigations is carried out through the figure of the undercover agent under Article 282 bis LECrim (Ley de Enjuiciamiento Criminal — the Spanish Criminal Procedure Act), authorized by the Investigating Judge or by the Public Prosecutor's Office to infiltrate criminal organizations under an assumed identity. Case law draws a clear distinction between this lawful figure and that of the agent provocateur, whose actions render the proceedings null and void:

"...no existe delito provocado... cuando los agentes de la autoridad sospechan o conocen la existencia de una actividad delictiva y se infiltran entre quienes la llevan a cabo, en busca de información o pruebas." ("...there is no entrapment offence... when the authorities' agents suspect or know of the existence of criminal activity and infiltrate those carrying it out, in search of information or evidence.")

The decisive criterion, reiterated in later rulings of the Supreme Court, is who held the criminal initiative: there is no entrapment offence when the accused had already decided to commit the crime independently of the police intervention, and the agents' conduct is limited to bringing to light a pre-existing illicit activity. Conversely, when it is the police conduct itself that generates in the individual a criminal intent that did not previously exist, the evidence obtained becomes null due to a violation of the right to proceedings with all guarantees. Our defense subjects to exhaustive examination the complete chronology of contacts between the agent and the accused, the existence of judicial or prosecutorial authorization prior to the decisive action, and the full content of intercepted communications, since the failure to provide their complete content — rather than mere police summaries — constitutes, as the Supreme Court has recently held, a deficiency that compromises the right of defense.

Controlled deliveries and international cooperation

In international trafficking operations — maritime or air transport, or through human couriers, including the practice known as "body-packing" — the investigation is frequently carried out through controlled deliveries coordinated with foreign agencies, Europol and Eurojust, in which the substance detected in the country of origin is tracked to its final destination under police control. Case law has declared this technique lawful when the Spanish police merely investigate acts already underway, without participating in the shipment or inducing its commission. Our experience before the Audiencia Nacional (National High Court — the Spanish court with jurisdiction over serious cross-border crime) in seizure operations in international waters — including the boarding of vessels under the 1988 Vienna Convention and the United Nations Convention on the Law of the Sea — allows us to scrutinize with precision the validity of the flag State's authorization, an enabling requirement whose absence compromises the lawfulness of all subsequent action.

Chain of custody and lawfulness of the search and entry

In offences against public health, the incriminating evidence arises, in the vast majority of cases, from a search and entry, a body search, or the interception of communications. Reviewing its regularity constitutes the first line of defense: the absence of a reasoned judicial authorization, the disproportionate nature of the interference, or a break in the chain of custody between seizure, weighing, sealing and expert analysis of the substance may result in the exclusion of the evidence and, with it, acquittal. Case law clarifies, however, that merely formal irregularities that do not compromise the identity or integrity of the substance analyzed are not, on their own, sufficient to establish a break in the chain of custody, which requires the defense to carry out a detailed technical analysis of the protocol followed by each acting force.

The drug-addiction mitigating circumstance (art. 21.2ª CP)

When the accused is themselves a drug user, the defense raises the mitigating circumstance of serious addiction under Article 21.2ª CP, whose requirements case law has refined with increasing rigor: it is not enough to prove habitual or even intense use of narcotic substances; it is essential to establish a dependency involving impairment of the person's cognitive or volitional faculties at the time of the events, or that the criminal conduct functionally responds to the need to fund the addiction.

"...la atenuante... es apreciable cuando el culpable actúe a causa de su grave adicción..., condicionado o acuciado por ella para obtener la sustancia que necesita imperativamente." ("...the mitigating circumstance... is applicable when the offender acts because of their serious addiction..., conditioned or driven by it to obtain the substance they urgently need.")

Establishing this circumstance requires rigorous expert evidence — a forensic medical report on the intensity and duration of the dependency — which at RAKH ABOGADOS we build from the very first moment of the proceedings, since late or generic evidence of this kind is systematically rejected by the courts.

Collaboration with justice: the confession mitigating circumstance and art. 376 CP

Article 376 CP allows the penalty to be reduced by one or two degrees for anyone who, being responsible for these offences, voluntarily abandons their criminal activities and actively collaborates with the authorities to prevent the commission of the offence or to obtain decisive evidence against other offenders or against organizations to which they belonged. This provision operates independently of the general confession mitigating circumstance under Article 21.4 CP, whose application requires the admission of the facts to be voluntary, early and useful for clarifying the investigation, and case law does not accept as such a late admission or one lacking real contribution once the investigative phase has been exhausted. We assess in each case, together with the client, the strategic advisability of active collaboration as against the full exercise of the right of defense — a decision that belongs exclusively to the client once rigorously informed of its consequences.