CRIME OF TRAFFIC OF DRUGS
Minimum and maximum dose according to the Tribunals
Criminal behaviors for the quantity of drug
Definition of toxic drugs, psicotrópicas and narcotics
Atipicidad for the insignificance of the dose
I price and Purity of the drugs according to PNSD
Traffic of drugs in function of the quantity
In the article 368 of the Penal Spanish Code, he/she settles down that: Those that execute cultivation acts, elaboration or traffic, or otherwise promote, favor or facilitate the illegal consumption of toxic drugs, narcotics or substances psicotrópicas, or they possess them with those ends, they will be punished with the prison hardships from three to nine years and it fines from the point to the triple of the value of the drug object of the crime if you will be about substances or products that cause serious damage to the health, and of prison of one to three years and it fines from the point to the double one in the other cases.
In the I articulate 369.1.6ª are increased the pain when being about a quantity of notorious importance
In the I articulate 379.3 are picked up as aggravation by their extreme graveness that the quantity of the substances to that he/she refers the I articulate 368 exceeds notably of the one considered of notorious importance.
In the I articulate 376 it allows to lower the pain in one or two grades being about a drogodependiente if the quantity was not of notorious importance or it carries to an extreme graveness
In the I articulate 377 for the determination of the quantity of the tickets one will keep in mind the final price of the product or the recompense or gain that can obtain the criminal.
Definition of toxic drugs, narcotics and psicotrópicas:
From the pharmacological point of view and according to the World Organization of the Health (OMS), the drug concept is "applicable to any therapeutic substance or not that introduced in the organism by any mechanism (ingestion, inhalation, administration intramuscular or intravenous, etc.) it is able to act on the consumer's system nervous power station provoking a change in its behavior, either a physical or intellectual alteration, an experimentation of new sensations or a modification of its psychic" state, characterized for: 1º The overwhelming desire or necessity to continue consuming (psychic dependence). 2º Necessity to increase the dose to increase the same effects (tolerance). 3º The physical or organic dependence of the effects of the substance (that he/she makes truly necessary their lingering use, to avoid the syndrome of abstinence).
The national legislator has opted, the same as the rest of western Europe, for a restricted concept of drug, limiting it to the illegals, that is to say, those that it considers that, according to the International Agreements they provoke dependence, without including those socially accepted as the alcohol, distinguishing among the illegals, those that cause serious damage to the health and those that don't cause it, but in any moment he gives a clear concept of what should understand each other for toxic "drug, narcotics and substances psicotrópicas", being remitted to the lists contained in the international norms and to internal norms of character administrative-sanitarium.
The unique Convention of 1961 on narcotics. New York, August 8 of 1975). The narcotics are substances dedicated to mitigate the pain but that an undue use can give place to a toxicomania. Some definitions picked up in this agreement: for "cannabis" he/she understands each other the tops, florid or with fruit, of the plant of the cannabis (to exception of the seeds and the leaves not together to the tops) of which the resin has not been extracted, whichever it is the name with which it designates them to him, for "opium" he/she understands each other the coagulated juice of the poppy, for "poppy" he/she understands each other the plant of the species Papaver somniferum L, for "bush of coca" he/she understands each other the plant of any species of the gender Erytnroxilon, etc.
Also in the Spanish environment, the Law 17/1967 of April of narcotics 8 upgrade the Spanish legislation adapting it to that settled down in the Agreement: they are considered narcotics the natural or synthetic substances included in the lists I and II of the annexed ones to the Unique Agreement of 1961 of the United Nations, have more than enough narcotics and the other ones that you/they acquire such a consideration in the international environment, with arrangement to this Agreement and in the national environment for the procedure that reglamentariamente settles down and they will have the consideration of articles or forbidden goods the included narcotics or that they are included in the successive thing in the IV of the annexed lists to the mentioned Agreement. Examples: Cannabis (hashish, oil of hashish and marijuana), cocaine, heroine, metadona, opium and morphine.
In the Convention of the United Nations against the I traffic illicit of narcotics and substances psicotrópicas (BOE núm. 270/1990, of November 10 of 1990) he/she makes a remission to that regulated in those two previously seen agreements:
For "narcotics" he/she understands each other anyone of the substances, natural or synthetic, that you/they figure in the list I or the list II of the Unique Convention of 1961 on Narcotics and in that Convention amended by the Protocol of 1972 of modification of the Unique Convention of 1961 on Narcotics.
For "substance psicotrópica" he/she understands each other any substance, natural or synthetic, or any natural material that it figures in the lists I, II, III or IV of the Agreement have more than enough Substances psicotrópicas of 1971.
MINIMUM DOSE AND MAXIM ACCORDING TO THE TRIBUNALS
Definition of notorious importance in the criminal type
The Agreement of the Full one of the Room II of the Supreme Tribunal of October of 2001, 19 from a perspective of legality considered that regarding the increased subtype of notorious importance that the same one came determined by a normative concept whose reach has not been fixed a priori by the legislator, but rather he/she has to be specified valorativamente by the juzgador. Should keep in mind, to effects of the principle of proportionality that the limit should be interpreted between the "habitual" thing and the "notoriously important" thing.
Based on that which, he/she decided to determine starting from the five hundred doses referred to the daily consumption that he/she appears upgraded in the Report of the National Institute of Toxicology of October of 2001, 18 the specific added difficulty of quantity of notorious importance of toxic drugs, narcotics or substances psicotrópicas, foreseen in the art. 369.3º of CP; staying the approach continued by this Room II of keeping exclusively in mind the substance bases or toxic, this is, reduced to purity, with the exception of the hashish and of their derived.
These relative crimes to toxic drugs are crimes of danger with those that it is sought to avoid a protected future lesion of the very juridical one that in this case it is the health it publishes, being enough the setting in danger for the commission of a criminal fact. But the mere presence of a quantity of drug cannot imply the existence of a crime if he/she doesn't accompany of a certain risk, risk that should be determined in the first place in an objective way establishing some parameters and in second personalizing it according to the concrete circumstances of the case and of the author. Not being regulated neither in the penal Code neither in later legislation, it has been the jurisprudence the one that has had to go marking the rules of what is considered an insignificant quantity to create a situation of risk. This way the expressed thing the Supreme Tribunal in the sentence 298/2004 of March 12: "the object of the crime should have an it limits quantitative and qualitative minimum, because the environment of the type cannot be enlarged in way so desmesurada that reaches the transmission of substances that, for its qualitative extreme desnaturalización or its quantitative extreme excess, lack effects potentially harmful that serve from foundation to the penal" prohibition. As at the beginning of insignificance the behavior is atypical when the quantity of drug is so insignificant that it is unable to produce noxious effect some to the health (it sentences of December of 2000, 11 1889/2000). This principle of insignificance has been applied in an occasional way to the I traffic of drugs, although it finishes it jurisprudence he/she says that it is not possible its application because when being about a serious crime the abstract danger it is already enough to justify its intervention (Resource of Help 563/2007). Alone it is applied in an exceptional and restrictive way when the "absolute excess" of the substance no longer constitutes a toxic drug or narcotic but an innocuous product. Application examples the principle of insignificance for the jurisprudence of the Supreme Tribunal:
0,05 grs. heroine (STS 12 September 1994)
0,06 grs. heroine (STS 28 October 1996)
0,02 grs. heroine (STS 22 January 1997)
0,10 grs. cocaine (STS 22 September 2000)
0,02 grs. cocaine (STS 11 December 2000)
to share dose of a metadona treatment (STS 18 July 2001)
It is known as dose initial psicoactiva that minimum quantity of a chemical substance that has effect in the organism. The Full one not jurisdictional of the Supreme Tribunal January 24 the 2003 in order to proceeding to the unification of approaches request to the National Institute of Toxicology a report that is evacuated in December of that same year (he/she Informs of the Toxicological Service of Information of the National Institute of Toxicology 12691 of December 22 of the one 2003). This Report was object of a summary for the technical cabinet of the Supreme Tribunal that remitted it to all the magistrates with the doses minimum psicoactivas of 6 substances. This summary of the report was maintained by a non jurisdictional Agreement of Room February 3 of the one 2005. Limit them between tipicidad and atipicidad they mark it the following quantities:
heroine 0,66 mg / 0,00066 gr.
cocaine 50 mg / 0,05 gr.
Hashish 10 mg / 0,01 gr.
LSD 20 mg / 0,000005 gr.
MDMA (Ecstasy) 20 mg / 0,02 gr.
Morphine 2 mg/0,002 gr.
The quantities assumed by the Supreme Tribunal are not exact to those mentioned in the report of the Institute of Toxicology, for example the quantity of heroine is sensibly inferior in 0,34 mg (it demands 1 mg), they were not few you criticize them received that they were based in that these quantities were too low allowing the acquittal in many suppositions under the "principle of insignificance." These quantities are simple references, susceptible of shadings in each concrete case, it picks up this way it the sentence of March 12 the 2004 298/2004: it doesn't prevent "It that the figure can be questioned in each case by the parts in future prosecutions, contributing in its case expert contradictory verdicts, neither neither it deprives obviously to the Rooms sentenciadoras of its ability of valuing this reports according to the rules of the healthy one it criticizes, in a penal process that is characterized by the validity of the contradictory" principle.
The percentage of wealth of the substance is also important to effect of determining if it exists or non crime, is used to know if it is able to cause risks for the health and it supposes the proportion of the active contained principle in her, although alone it is outstanding in those suppositions in that the quantities are scarce.
4.- big dose that suppose a quantity of notorious importance
According to the Agreement of the Full one of the Room 2ª of the Supreme Tribunal of November 19 the 2001, the added difficulty specifies of notorious importance foreseen in the I articulate 369.3 of the penal code are determined starting from the 500 doses referred to the daily consumption of each one of the substances according to the one he/she informs of the National Institute of Toxicology of October 18 of 2001. For their determination one keeps exclusively in mind the substance it bases or toxic, with the exception of the hashish and their derived.
Some examples give quantities of notorious importance:
Heroine 300 gr.
Morphine 1.000 gr.
Metadona 120 gr.
Cocaine 750 gr.
Marijuana 10 Kg.
hashish 2,5 Kg.
Oil of hashish 300 gr.
LSD 300 mg
MDMA (ecstasy) 240 gr.
Amphetamines 90 gr.
In the sentence 413/2007 of May 9, the Tribunal establishes an interpretation in favor of the criminal accepting that in the analyses of the substances regarding the pesaje and determination of the purity exists a margin of error of 5%, in this case the intervened substance was of 303,55 grs. of heroine of which appreciating a simple error of 1,2% comes out a quantity of 299,91 grs., with that which would be no longer quantity of notorious importance.
The extreme graveness foreseen in the I articulate 369 it has not still been interpreted by the Full one. The Sentence 352/2007 of April 23 consider like it carries to an extreme graveness the remarkable excess in comparison with the one kept in mind in the notorious importance, it is about an aggravation objetivada that a bigger antijuridicidad of the action behaves, for the biggest diffusion danger at third, in function of the biggest quantity in drug that the same one understands", appreciating in this sentence this aggravation before 3,64 grs. of hashish.
(porticolegal.com-article of Mª Incarnation Mayán Santos)
Atipicidad for the insignificance of the dose
In the last years, he/she has left imposing a doctrine in the Room 2ª of our TS of absolving the accused of traffic of drugs when it was about sale of a papelina or individual dose of stupefying substance, that is to say, that that commonly is known as "trapicheo" or "retail trade."
This theory one has come applying when this acts were minimum, assisting to the quantity of sold drug, being based for it on a doctrine of origin German call of "insignificance" or of "lesividad." However, depending on the organ enjuiciador, it was condemned or it absolved in same cases, what caused the vulneración of the principle of artificial security. This doctrine had its immediate precedent in STS of October 28 1996 in which was absolved the accused that had transmitted 0,6 grams of heroine considering that for its insignificance it was below the minimum thresholds of intervention from the punitive right when not generating risk some for the very juridical one protected, concluding the same one establishing that "the objective environment of the type cannot be enlarged in way so desmesurada that reaches the transmission of substances that you/they lack the effects potentially for its qualitative extreme desnaturalización or its quantitative extreme excess harmful that serve from foundation to its penal" protection.