First of all, we must be clear about what the crime of drug trafficking is. It is a conduct consisting of the cultivation, production, facilitation of consumption and trade of toxic drugs, narcotics and psychotropic substances. It includes the trafficking of precursors, that is, products that serve these purposes. It is considered a crime against public health and is classified in articles 368 to 377 of the Penal Code.
The legal asset that is intended to be protected is public health , and therefore mere possession for personal consumption does not constitute a crime. Trafficking in soft drugs (marijuana and hashish) carries a prison sentence of 1 to 3 years , and trafficking in hard drugs carries a prison sentence of 3 to 6 years .
In Spain, the following are punishable as crimes: the illegal cultivation, production and trafficking of toxic drugs, narcotics and psychotropic substances, the illegal possession of these for these purposes, as well as activities that promote, favour or facilitate their illegal consumption. The illegal consumption and possession of toxic drugs in public spaces constitutes an administrative offence.
It must be made clear that the mere possession of drugs does not constitute poland telegram a crime, provided that it is not used for illegal drug trafficking. For a crime to exist, two requirements must be met :
Possession or possession of prohibited substances
The desire to traffic.
We focus on the requirement of possession or ownership. Jurisprudence takes into account the quantities detected or, if said quantities are small, if the intention to traffic is demonstrated. Likewise, if it is alleged that the drug detected is for personal consumption, the status of addict must be proven .
What amount is considered to be for self-consumption?
As a general rule, it is considered that a regular consumer usually purchases for himself the amount necessary for five days , being the limit between the amount considered for personal consumption and the amount intended for trafficking.
But be careful, because it can also be considered a crime even if the amounts established for personal consumption are not exceeded. If the intention to traffic can be proven, that is, to use that amount for sale to third parties, a crime would be committed. The Supreme Court has made it clear that being a consumer does not absolutely exclude the intention to traffic. Crimes against public health, specifically drug trafficking, are complex. That is why at RINBER Abogados we are specialists in this matter, both as prosecution and criminal defense attorneys.