“Of the crimes against the public health”, is the title of the Chapter III, of the Title XVII, of the Book II, of the Spanish Penal Code (CP). Being placed within the Title XVII, we are in front of a new group of crimes which have as protected legal good the collective security, though, in this case, the legal good is better defined by the public health.
It is a long chapter, since it is formed by 28 articles. But, aside from this detail, it is very important, because in this Chapter III is punished the drug trafficking, a crime which in some occasions surpasses the national frontiers, is committed through complex organizations y deals with important amounts of money, with the danger of corruption which this entails. Nonetheless, not everything in the Chapter III is drug trafficking, it also talks about medicines, harmful substances, adulterated food and the use of performance-enhancing drugs.
Let us study it in detail, trying to explain the meaning and scope of each of its articles.
– Article 359:
The article 359 has the honor of being the first of the articles of the Chapter III, regulating the manufacture, delivery or sale of harmful substances for the health or chemical products which may cause grave havoc. The article 359 says:
“Article 359.
Whoever, without being dully authorized, manufactures harmful substances for the health or chemical products which may cause havoc, or delivers or sells them, or trades with them, shall be punished with the punishment of imprisonment from six months to three years and fine from six to twelve months and special disqualification for profession or trade from six months to two years.”
When we start to read the precept, the first thing we realize is that, this is a common crime, in the sense that it can be committed by anyone regardless his profession, trade or any other characteristic which may distinguish him from others. We draw this conclusion from the employment of the expression “Whoever…”.
We continue reading, and we find the following expression “without being dully authorized”. This indicates that this is a blank penal norm, since it has to be completed with the corresponding administrative norms which regulate the granting of the authorization to which the precept refers. The question now is, which one is this administrative norm to which the precept refers?
In order to answer this question, first we should continue with the analysis of the article 359. The forbidden behavior consists in manufacturing, selling, delivering or trading with harmful substances for the health or with chemical products which may cause havoc. According to the Dictionary or the Spanish Royal Academy of the Language (DRAE), “to manufacture” means: “To transform a thing or obtain a product by means of an adequate work”; “to sell” means: “to vend a product or a merchandise”; “to deliver” means: “to provide someone with something he needs”, and; “to trade” means: “to engage in buying and selling of goods or services.”
Pay attention to the fact, that the legislator has shaped this crime as a crime of mere activity, which consummates itself as soon as the forbidden behavior is carried out.
For manufacturing, selling, delivering or trading with harmful substances to the health, it is necessary to obtain the authorization established in the Regulation (EC) nº 1907/2006 (henceforward REACH, acronym of Registry, Assessment, Authorization and Limitation of chemical substances and mixtures), which came into force on 1 June 2007. The REACH is applied to all the chemical substances used on a daily basis, either pure, mixed or included in other articles, being, therefore, applicable in different economic sectors.
According to the article 57 of the REACH, must be subjected to authorization the substances: carcinogenic, mutagenic, classified as toxic for the reproduction, and persistent, bioaccumulative and toxic.
For this purpose, the REACH establishes a list of substances subject to authorization in its Annex XIV.
Regarding the authorization for chemical products which may cause havoc, I understand that the precept is referring to chemical products with which is possible to make explosives with great destructive power, in line with the crime of havoc of the article 346 CP. In these cases, we should attend to the established in the Royal Decree 130/2017, of 24 February, by which is approved the Regulation of Explosives, and the Royal Decree 989/2015, of 30 October, by which is approved the Regulation of pyrotechnic articles and shotgun cartridges.
If we continue reading the article 359, the next thing we find is the punishment. This makes us think in one thing, what is the boundary between the administrative infringement and the penal illicit? Because, either the Royal Decree 130/2017, of 24 February, by which is approved the Regulation of Explosives, the Royal Decree 989/2015, of 30 October, by which is approved the Regulation of pyrotechnic articles and shotgun cartridges or the Law 8/2010, of 31 March, by which is established the penalty system of the REACH, have their own penalty system, being one of the infringements to carry out the regulated activity without being dully authorized. Though, at first sight it may seem a complex question, due to the existence of principles like the principle of minimal intervention or of last resort of the penal law, this is not. These principles are not aimed at applying of the law, but the legislator, who is the person in charge of defining the forbidden behavior in the CP. Therefore, whenever a behavior fulfills the objective and subjective elements of a crime, it has to be punished according to the CP.
With regard to the subjective elements of the crime, at first sight it seems that the application of this precept is limited to the cases where there has been malice. There is direct malice when the active subject knows the objective elements of the crime and in spite of this, he executes them. And there is eventual malice, when the active subject knows the possibility of fulfilling these objective elements of the crime, and despite this he goes on. But we have to be careful, because in this Chapter III we find the article 367 which also punishes the grave imprudence. If like we said before, in the eventual malice the active subject knows the possibility of fulfilling the objective elements of the crime, in the grave imprudence happens the same, but refusing that this is going to happen. The refusal may be due to the belief of being taking the necessary precautions, or because he thinks that he has the proper skills, or because of the tools employed, or any other circumstance which may make the active subject believe that the forbidden result by the norm is not going to take place.
– Article 360:
We can consider the article 360, as a variant of the previous article. The article 360 says:
“Article 360:
Whoever, being authorized to traffic with the substances or products to which is referred the previous article, sells or delivers them without complying with the formalities established in the respective Laws or Regulations, shall be punished with the punishment of fine from six to twelve months and disqualification for profession or trade from six months to two years.”
Let us start with its analysis. The first is to think whether it is a common crime or a special own crime. Before we argued, that the use of the expression “Whoever…” indicates that this is a common crime, but now we must disagree, here this is again used, but within the ambit of a special own crime, because it can only be committed by those who are authorized to traffic with the substances or products to which is referred the previous article.
Then, we already have one of the objective elements of the crime, the active subject has to be duly authorized. Another objective element is the forbidden behavior, which consists in selling or delivering the substances and products to which is referred the previous article, without fulfilling the applicable Laws and Regulations. We already know the meaning of selling and delivering, and the applicable Laws and Regulations (the REACH). We also know, that this reference to other Laws and Regulations transforms this penal norm into a blank penal norm.
Like in the article 359, we could have the doubt of whether to punish a behavior according to the REACH or the CP. But like before, when a behavior fulfils the objective and subjective elements of a crime, it is the CP the one which must be used to punish it.
Concerning, the subjective elements of the crime, we cannot add anything different to the already mentioned in the article 359. It is a malicious crime, which may be possible to commit by eventual malice, and by grave imprudence (art. 367 CP).
– Article 361:
The article 361 has as object the medicines. The article 361 says:
“Article 361.
Whoever manufactures, imports, exports, delivers, intermediates, trades, offers or puts into the market, or stores with these aims, medicines, including those of human and veterinarian use, as well as the medicines of investigation, which lack the necessary authorization required by the law, or sanitary products which do not have the documents of conformity required by dispositions of general character, or which are spoiled, expired or not fulfilling the technical requirements regarding their composition, stability and efficacy, and with this is generated a risk for the life or health of the persons, shall be punished with the punishment of imprisonment from six months to three years, fine six to twelve months and special disqualification for profession or trade from six to three years.”
We start mentioning that this is a common crime, since it can be committed by anyone.
Let us now analyze the forbidden behavior. The article 361 punishes whoever “…manufactures, imports, exports, delivers, intermediates, trades, offers or puts into the market, or stores with these aims, medicines, including those of human and veterinarian use, as well as the medicines of investigation, which lack the necessary authorization required by the law, or sanitary products which do not have the documents of conformity required by dispositions of general character, or which are spoiled, expired or not fulfilling the technical requirements regarding their composition, stability and efficacy…”.
Like we are able to observe, almost any behavior which is carried out with medicines without their corresponding authorization fits within the crime. This characteristic makes us talk about another, the article 361 is a blank penal norm, needing to be completed by others. For this purpose, we can mention the Royal Decree 1345/2007, of 11 October, by which is regulated the proceeding of authorization, registration and conditions for selling the medicines of human use industrially manufactured, or the Royal Decree 666/2023, of 18 July, by which is regulated the distribution, prescription, sale and use of veterinary medicines.
But there is another objective element of the crime which is also important, the behavior which is carried out without the due authorization or infringing the norms regarding medicines, should generate a risk for the life or health of the persons, otherwise the behavior would be licit. This means that, this is a crime of hypothetical or abstract danger, thereby, the important is that the behavior should be suitable to generate this danger for the life or health of the persons, but without being relevant, whether in reality this risk existed or not.
On the other hand, regarding the subjective elements of the crime, it is a malicious crime, which can be committed by direct malice and probably by eventual malice. There exists the possibility of committing it by grave imprudence (art. 367 CP).
– Article 361 bis:
The article 361 bis is aimed at protecting the minors or handicapped persons needed of special protection from consuming substances or technics of ingestion or elimination which may generate a danger for the health. The article 361 bis says:
“Article 361 bis.
The distribution or public spreading by internet, the telephone or any other technology of the information or the communication of contents specifically aimed at promoting or facilitating, between minors or handicapped persons needed of special protection, the consumption of products, preparations or substances or the utilization of technics of ingestion or elimination of food products whose use may be susceptible of generating a risk for the health of the persons shall be punished with the punishment of fine from six to twelve months, or punishment of imprisonment from one to three years.
The judicial authorities shall order the adoption of the necessary measures for the withdrawal of the contents to which the previous article refers, for the interruption of the services which predominantly offer such contents or the blocking of both when they are located abroad.”
Starting with this crime, we are going to point out that this is a common crime, since it can be committed be anyone, regardless of whether, for example, his profession or any other quality which may distinguish him from the rest.
The precept punishes, “The distribution or public spreading by internet, the telephone or any other technology of the information or the communication of contents specifically aimed at promoting or facilitating, between or handicapped persons needed of special protection, the consumption of products, preparations or substances or the utilization of technics of ingestion or elimination of food products whose use may be susceptible of generating a risk for the health of the persons.”
The precept seems to be mainly referring to the social networks, among which we can include WhatsApp, YouTube, Facebook, Instagram or TikTok. They are a powerful tool to spread information, since it is decentralized, not being necessary to be the owner of a traditional media, like a radio or tv channel or a newspaper, any of their users can create and spread content without any cost. Although the precept is not limited to them, another example would be the spreading of content through a website. This the meaning of its beginning, “The distribution or public spreading by internet, the telephone or any other technology of the information or the communication…”. It seems that the legislator is trying to cover any device or means through which is possible to spread and receive information.
What has to be distributed or spread are contents aimed at promoting or facilitating “the consumption of products, preparations or substances or the utilization of technics of ingestion or elimination of food products whose use may be susceptible of generating a risk for the health of the persons.” We can observe how the behavior of promoting or facilitating is aimed at two different aspects: 1) The consumption of products, preparations or substances, or; 2) The utilization of technics of ingestion or elimination of food products. In the first group we can include almost everything we are able to imagine, drugs, chemical products…The precept does not specify either the way in which these products should be consumed, thus, we understand that the ways by which they can be consumed are unlimited, inhalation, ingestion, injection… On the other hand, in the second group, the legislator seems to have thought in the eating disorders, like bulimia or anorexia.
And, we almost forget something very important, the content should be aimed at minors and handicapped persons needed of special protection. Otherwise, the behavior would be licit. This should be drawn from the way the content is presented to the public, for example, by the way of speaking, the employment of colors which may attract minors, … The existence of this requisite will be at the hand of the courts, and I am sure that it is going to provide much to talk about there, because it is very open to interpretations.
To the above we have to add that, any of these behaviors should be susceptible of generating a risk for the health of the persons. This means, that we are in front of a crime of hypothetical or abstract danger, which are consummated, when the behavior is suitable for generating a risk, but without being necessary that the legal good suffers a real risk.
The article 261 bis has a second paragraph, which impose to the judicial authorities the adoption of the “necessary measures for the withdrawal of the contents to which the previous article refers, for the interruption of the services which predominantly offer such contents or the blocking of both when they are located abroad.”
It is understood that these measures may be also agreed by the Examining Magistrate with preventive character and which can be also requested by the Public Accusation. This article 361 should be completed with the article 13 of the Spanish Penal Procedural Law and the article 8 of the Law of Services of the Society of Information and Electronic Commerce (LSSI).
On the other hand, it is a malicious crime, which might be committed by eventual malice, and which will be possible to commit by grave imprudence applying the article 367 CP.
– Article 362:
Let us first read the article 362:
“Article 362.
1. Shall be punished with the punishment of imprisonment from six months to four years, fine from six to eighteen months and special disqualification for profession or trade from one to three years, whoever manufactures or produce,
a) a medicine, including those of human and veterinarian use, as well as the medicines in investigation; or an active substance or an excipient of such medicine;
b) a sanitary product, as well as the essential accessories, elements or materials which are essential for its integrity.
In a way in which is deceptively presented: its identity, including, in its case, the package and labeling, the expiration date, the name or composition of any of its components, or, when applicable, their dosage; their origin, including the manufacturer, the country of manufacturing, the country of origin and the owner of the authorization of commercialization or the conformity documents; data concerning the fulfilment of legal requisites or requirements, licenses, conformity documents or authorizations; or their record, including registers and documents regarding the channels of distribution employed, whenever they are aimed at public consumption or use by third persons, and generate a risk for the life or health of the persons.
2. The same punishments shall be imposed to whoever alters, in its manufacturing or later, the amount, the dose, the expiration date or the genuine composition, according the authorized or declared, of any of the medicines, substances, excipients, sanitary products, accessories, elements or materials mentioned in the previous point, in a way that is reduced its security, efficacy or quality, generating a risk for the life or health of the persons.”
Art. 362.1:
The article 362 has two points, the first, in which the punished is the deception in sanitary product or medicine, and a second, in which is punished its alteration.
Let us begin with the first of these points. The forbidden behavior consists in manufacturing or producing, and it can be a medicine or a sanitary product. According to the DRAE, a medicine is a “Substance which, internally or externally administered in an animal organism, serves to prevent, cure or relieve the illness and correct or repair its sequalae.”
And according to the Information Circular Nº 21/97 from the General Management of Pharmacy and Sanitary Products, a sanitary product is: “any tool, device, equipment, material or other thing, utilized alone or in combination, including the computer programs which intervene in its good working, made by the manufactures for being used in human beings with the aim of:
1. Diagnosis, prevention, control, treatment and relief of an illness.
2. Diagnosis, control, treatment, relief or compensation of an injury or a deficiency.
3. Investigation, substitution or modification of the anatomy of a physiological process.
4. Regulation of the conception.
And which does not exercise the principal action that is desired to be obtained in the interior or the surface of the human body by pharmacological, immunological nor metabolic means, but to the function to which may contribute such means.”
But, besides, in order to be punishable the behavior, some of its aspects have to be deceptively presented, like its identity or date of expiration, it should be aimed at public consumption or be used by third persons, and generate a risk for the life or health of the persons. This last characteristic, makes us considerer this crime as a crime of hypothetical or abstract danger, therefore, for understanding consummated the crime the behavior has to be suitable to generate the risk forbidden by the norm, but it is not necessary that the legal good suffers a real danger.
On the other hand, it is a malicious crime, which could be committed by eventual malice, and which can be committed by grave imprudence although applying the article 367 CP.
Art. 362.2:
In the article 362.2 is punished with the same punishments than in the previous article, “whoever alters, in its manufacturing or later, the amount, the dose, the expiration date or the genuine composition, according the authorized or declared, of any of the medicines, substances, excipients, sanitary products, accessories, elements or materials mentioned in the previous point, in a way that is reduced its security, efficacy or quality, generating a risk for the life or health of the persons.”
Pay attention to the fact, that the important is that the forbidden behavior has to entail a risk for the life or health of the persons. This means that, it is a crime of the same nature than the previous one, in other words, it is a crime of hypothetical or abstract danger, in which the important is the suitability of the behavior to generate the risk for understanding consummated the crime.
Likewise, it is a malicious crime, which could be committed by eventual malice, and which is possible to commit by grave imprudence applying the article 367.
– Article 362 bis:
In the article 362 bis we have a variant of the previous article 362. This precept punishes, whoever facilitates the distribution of a medicine or sanitary product knowing that it has been previously altered or falsified. The article 362 bis says:
“Article 362 bis.
Shall be punished with the punishment of imprisonment from six months to four years, fine from six to eighteen months and special disqualification for profession or trade from one to three years, whoever, knowing its falsification or alteration, imports, exports, advertises, offers, exhibits, sells, facilitates, packs, delivers, including the intermediation, traffics, distributes or puts into the market, any of the medicines, active substances, excipients, sanitary products, accessories, elements or materials to which is referred the previous article, and with this generates a risk for the life or health of the persons.
The same punishments shall be imposed to whoever acquires o has stocked them with the goal of aiming them to public consumption, to the use of third persons or any other use which may affect to the public health.”
Let us start with its analysis. After the punishment, the first we observe is its character of common crime, for it can be committed by anyone. We draw this conclusion from the use of the expression “Whoever…”.
The next we find is a subjective element of the crime, this requires that the active subject has to know its falsification or alteration. This circumstance has to be proved by external objective elements, for example, by a price much lower than the market price or emails.
Subsequently, we see the forbidden behavior “…imports, exports, advertises, offers, exhibits, sells, facilitates, packs, delivers, including the intermediation, traffics, distributes or puts into the market, any of the medicines, active substances, excipients, sanitary products, accessories, elements or materials to which is referred the previous article…”. It is plain that, the legislator has made a broad enumeration of the actions which may give rise to the fulfilment of this objective element of the crime, this has two motives, he wants to comply with the principle of legality and mention all action which is dangerous to the legal good protected by the norm.
And lastly, these actions have to generate “a risk for the life or health of the persons”. There is no doubt that, this requisite makes us classify this crime as a crime of hypothetical or abstract danger, therefore, the behavior has to be suitable to create the risk forbidden by the norm, but not being necessary the materialization of this risk.
We have not forgotten the subjective elements of the crime, to the knowledge of the falsification or alteration, we have to add that this is a malicious crime, which could be committed by eventual malice, and is possible to commit by grave imprudence applying the article 367.
The article 362 has a second paragraph, which imposes the same punishments than the previous paragraph “to whoever acquires o has stocked them with the goal of aiming them to public consumption, to the use of third persons or any other use which may affect to the public health.”
In my opinion, the legislator could have omitted this second paragraph, since it is not complicated to include any of these behaviors among those mentioned in the first paragraph. In any case, we can sum up its characteristics as follows: common crime, which can be committed by anyone; crime of hypothetical or abstract danger, since the behavior has to be suitable to affect the public health; and malicious crime, which can be also committed by grave imprudence applying the article 367.
– Article 362 ter:
The article 362 ter says:
“Article 362 ter.
Whoever drafts any false document or of mendacious content referred to any of the medicines, active substances, excipients, sanitary products, accessories, elements or materials to which is referred the point 1 of the article 362, including its package, labelling and way of employment, for committing or facilitating the commission of one of the crimes of the article 362, shall be punished with the punishment from six months to two years of imprisonment, fine from six to twelve months and special disqualification for profession or trade from six months to two years.”
If the article 362 ter did not exist, there would not be any problem in including this behavior among those mentioned in the article 362. Moreover, the article 362 ter seems to be regulating a specific scenario in order to exclude it from the article 362 and provide it with a less harsh punishment, because it is less harmful to the legal good protected by the norm. It is punishing those who help to commit the article 362, although there would be no problem in punishing them according to any of the generic figures which the CP has for this, the necessary cooperator and the accomplice.
Returning to this article 362 ter, it is a common crime, for anyone can commit it, like the use of the expression “Whoever…” indicates.
The forbidden behavior consists in, drafting “any false document or of mendacious content referred to any of the medicines, active substances, excipients, sanitary products, accessories, elements or materials to which is referred the point 1 of the article 362, including its package, labelling and way of employment, for committing or facilitating the commission of one of the crimes of the article 362…” Like we can observe, the drafting of the false document or of mendacious content, should be aimed at committing or facilitating the commission of one of the crimes of the article 362. Now, the following question arises, what happens when who drafts the false document or of mendacious content is the same person who subsequently commits one of the crimes of the article 362?, can be all the facts punished according to the same article? or, do they have to be punished separately? I would choose the second option, basing my decision in the third rule of the article 8 CP, “The wider or more complex penal precept absorbs those which punish the infringements included in it”.
The crime of the article 362 ter has been shaped as a crime of mere activity, being consummated as soon as the behavior described by the precept is carried out.
Lastly, it is a malicious crime, although it can also be committed by grave imprudence applying the article 367.
– Article 362 quarter:
The article 362 quarter is an aggravated subtype of the basic crimes established in the articles 361, 362, 362 bis or 362 ter, imposing the punishments superior in degree of those established in them, whenever any of the circumstances that it mentions concur. The article 362 quarter says:
“Article 362 quarter.
Shall be imposed the punishments superior in degree to those established in the articles 361, 362, 362 bis or 362 quarter, when the crime is committed concurring some of the following circumstances:
1ª That the culprit was authority, public servant, doctor, sanitary professional, teacher, physical trainer, and acts exercising its position, profession or trade.
2ª That the medicines, active substances, excipients, sanitary products, accessories, elements or materials referred in the article 362:
a) had been offered by means of diffusion at great scale; o
b) had been offered or facilitated to minors, handicapped persons needed of special protection, or persons especially vulnerable regarding the facilitated product.
3ª That the culprit was member of a criminal organization or group which has as aim the commission of this kind of crimes.
4ª That the facts were committed in establishments open to the public by the persons in charge or employees of them.”
Among these aggravating factors, there is one which is a little problematic in its application, we are referring to the third, when the culprit is a member of a criminal organization or group which has as aim the commission of this kind of crimes. It is problematic, because the membership of criminal organization or group is punished as an autonomous crime by the article 570 bis and 570 ter, this supposes that, the aggravating factor of the article 362 quarter could not be applied if the facts were also punished by the article 570 bis or 570 ter, or the principle non bis in idem would be infringed. The solution to this problem is in the article 570 quarter dos, which states that, “when the behaviors established in those articles were included in another precept of this Code, shall be applied the fourth rule of the article 8.” This applied to our case means that, the judges and court should assess, on the one hand, the punishment which should be imposed to the facts when they were punished according to the article 361, 362, 362 bis or 362 ter with the aggravating factor of being a member of a criminal group or organization of the article 362 quarter, and on the other hand, the punishment which should be imposed to the facts if they were punished according to the article 361, 362, 362 bis or 362 ter in a medial concurrence of crimes with the crime of membership of criminal group or organization of the article 570 bis, having to punish the facts with the option imposing a harsher punishment.
– Article 362 quinquies:
The article 362 quinquies is an important article because of its implications in the practice of sports, since it punishes those who favor the doping. The article 362 quinqies says:
“Article 362 quinquies.
1. Whoever, without therapeutic justification, prescribes, supplies, sells, provides, administers, offers or facilitates to non-competitive federated sportsmen, non-federated sportsmen who practice sport for recreation, or sportsmen who participate in competitions organized in Spain by sport entities, forbidden substances or pharmacological groups, as well as non-regulatory methods, aimed at enhancing their physical capabilities or modifying the results of the competitions, which by their content, reiteration in their ingestion or other concurring circumstances, put into danger the life or health of them, shall be punished with the punishment of imprisonment from six months to two years, fine from six to eighteen months and special disqualification for public employment or position, profession or trade, from two to five years.
2. Shall be imposed the punishments established in the previous article in their superior half when the crime is committed concurring any of the following circumstances:
1ª That the victim is a minor.
2ª That either deception or intimidation has been employed.
3ª That the person responsible for the crime has exploited an employment or professional relationship of superiority.”
Art. 362 quinquies 1:
Let us analyze it. It is a common crime, for it can be committed by anyone, regardless, for example, his profession or any other characteristic which may distinguish him from the rest.
The first objective element of the crime that we find is that, the forbidden behavior has to be carried out “without therapeutic justification”. Therefore, we can conclude that, when there is a therapeutic justification the behavior is wholly licit and cannot be punished according the article 362 quinquies.
The forbidden behavior consists in prescribing, supplying, selling, providing, administering, offering or facilitating “…to non-competitive federated sportsmen, non-federated sportsmen who practice sport for recreation, or sportsmen who participate in competitions organized in Spain by sport entities, forbidden substances or pharmacological groups, as well as non-regulatory methods, aimed at enhancing their physical capabilities or modifying the results of the competitions, which by their content, reiteration in their ingestion or other concurring circumstances, put into danger the life or health of them,…”.
If we star with the actions which give rise to the crime, we see how the legislator punishes any way of facilitating the consumption of dopant substances. It is not excluded any kind of sportsman either, regardless of whether he is federated or not, or regardless of whether he participates in sport competitions, the forbidden behavior is still illicit.
What cannot be facilitated is forbidden substances or pharmacological substances or non-regulatory methods, this implies that there has to be a list somewhere with them and that this article 362 quinquies is blank penal norm, which has to be completed with other for wholly unveiling its meaning. The list with the dopant substances and forbidden methods has been drafted by the World Anti-Doping Agency, this is the document which we have to use in order to find out whether a substance or method is forbidden and, therefore, justifies the application of the article 361 quinquies.
Lastly, this substances or methods have to put into danger the life or health of the sportsmen, this requisite is as important as the rest, consequently, even when a substance has been administered without therapeutic justification and is included in the World Anti-Doping Agency´s list of forbidden substances, if this had not put into danger the life or health of the sportsman, the article 362 quinquies could not been applied for punishing the behavior. This requisite also indicates that, this is a crime of hypothetical or abstract danger, it is enough with the suitability of the behavior for generating the risk forbidden by the norm for understanding consummated the crime, or in other words, it is not necessary that the life or health of the sportsman had been put into real danger.
Finally, it is a malicious crime, which can be committed by grave imprudence too, applying the article 367.
Art. 362 quinquies 2:
In the second point of the article 362 quinquies, we find an aggravated subtype of the crime established in the first point. The punishment established in the first point will be imposed in its superior half when:
1ª The victim is a minor.
2ª Either deception or intimidation has been employed.
3ª The person responsible for the crime has exploited an employment or professional relationship of superiority.
The intimidation may be regarded by itself a crime against the freedom, it may be regarded as coercions or even threats, or they may not reach the necessary intensity for being a crime. If the intimidation could be punished as threats or coercions, we had the doubt of whether it would be comprehended in the crime of doping or they would have to be punished independently. I choose the first scenario, firstly, because of the third rule of the article 8 CP, “The wider or more complex penal precept shall absorb those which punish the infringements included in it.” And, secondly, because we cannot apply the aggravating factor of intimidation and subsequently punish the intimidation independently as a crime, since it would infringe the principle non bis in idem. But, this is not a general rule without exceptions, if the threats or coercions had had enough intensity for acquiring relevance by their self, due to their gravity, they would have to be punished independently, in other words, as a concurrence of crimes, in my opinion, a medial concurrence of crimes (art. 77 CP), for the coercions or threats would have been the necessary means to commit the crime of doping. In the case that, the facts were punished as a medial concurrence of crimes, the aggravating factor of intimidation of the article 362 quinquies could not be applied, otherwise the principle non bis in idem would be infringed. But, what happens when an intimidation does not have enough intensity for being considered as a crime of threats or coercions? In my opinion, in these cases, the aggravating factor of doping of the article 362 quinquies could not be applied, for they would not have enough intensity for being penally relevant. Then we can conclude that, the intimidation punished as an aggravating factor by the article 362 quinquies has to have enough intensity for being a crime by itself, but cannot be very grave or it would exceed the limits of the article 362 quinquies and it would have to be punished independently.
– Article 362 sexies:
The article 362 sexies expressly applies the rules established in the article 127 to 128 CP, to the substances and products included in the articles 359 and following. The article 362 sexies says:
“Article 362 sexies.
In the crimes established in the previous articles of this Chapter shall be the object of seizure the substances and products to which are referred the article 359 and following, as well as the goods, tools, means and profits according to the established in the articles 127 to 128.”
Is this article essential? No, the general rules of the articles 127 to 128 still apply to the article 159 and following without it, but it fulfils a clarifying function.
– Article 363 CP:
The article 363 says:
“Article 363.
Shall be punished with the punishment of imprisonment from one to four years, fine from six to twelve months and special disqualification for profession, trade or industry from three to six years the producers, distributors or merchants who endanger the health of the consumers:
1. Offering in the market food products with omission or alteration of the requisites established by the laws or regulations about expiration or composition.
2. Manufacturing or selling drinks or food aimed at public consumption and harmful for the health.
3. Trafficking with rotten food.
4. Manufacturing products whose use has not been authorized and is harmful for the health, or trading with them.
5. Hiding or stealing goods destined to be rendered useless or disinfected, for trading with them.”
Beginning with the analysis of the article 363, the first we see is that, it is a special own crime, since it can only be committed by producers, distributors or merchants.
We continue reading and the precept states that the producers, distributors or merchants have to endanger the life of the consumers. This means that, this is a crime of hypothetical or abstract danger, therefore, it is enough for the forbidden behavior with being suitable to generate the risk in order to understand consummated the crime, or in other words, the health of the consumers does not have to suffer a real danger.
Subsequently, the precept makes an enumeration of the forbidden behaviors, there are five:
“1. Offering in the market food products with omission or alteration of the requisites established by the laws or regulations about expiration or composition.
2. Manufacturing or selling drinks or food aimed at public consumption and harmful for the health.
3. Trafficking with rotten food.
4. Manufacturing products whose use has not been authorized and is harmful for the health, or trading with them.
5. Hiding or stealing goods destined to be rendered useless or disinfected, for trading with them.”
Of these five, two of them transform this article 363 into a blank penal norm, we are referring to the first and fourth. In the first, the requisites established by the laws or regulations about expiration date and composition have to be omitted. And, in the fourth, someone has to be trading or manufacturing products whose use is not authorized, therefore there has to be a norm forbidding the use of some products without authorization. Regarding the first case, we can mention the Law 28/2015, of 30 July, for defending the food quality and the Royal Decree 1334/1999, of 31 July, by which is approved the general rule of labelling, presentation and advertising of food products. But we have serious doubts with the second case, because there seems to be an overlapping between this fourth behavior of the article 363 and the one of the article 359. The article 359 says “Whoever, without being dully authorized, manufactures harmful substances for the health…” And the article 363.4 states “Manufacturing products whose use has not been authorized and is harmful for the health…” I am not able to see the difference between them, although the article 363 has harsher punishments than the article 359. If we admitted that there is no difference between them, then, the Regulation Reach would be also applicable to the article 363.
Beyond that, it is a malicious crime, which can be also committed by grave imprudence applying the article 367.
– Article 364:
The article 364 is aimed at food, substances and drinks which are traded. It has two points, the first which regulates the adulteration of food with additives, and a second which has as object the meat or products coming from animals for slaughter. The article 364 says:
“Article 364.
1. Whoever adulterates with additives or other non-authorized agents susceptible of harming the health of the persons the food, substances, drinks aimed at food trading, shall be punished with the punishments of the previous point. If the culprit was the owner or person responsible for the production of the factory of food products, shall be punished, besides, with the punishment of special disqualification for profession, trade or industry from six to ten years.
2. The same punishment shall be imposed to whoever carries out any of the following behaviors:
1º To administer to the animals whose meats or products are aimed at human consumption not allowed substances that generate risk for the health of the persons, or in greater doses or for different aims than those authorized.
2º To slaughter livestock or destine their products to human consumption, knowing that they have been administered with the substances mentioned in the previous point.
3º To slaughter livestock to which have been applied therapeutic treatments with the substances to which the point 1º is referred.
4º To sell for public consumption the meat or products from the livestock without complying with the waiting periods established in the regulations.”
Art. 364.1:
The first thing we realized reading the first point of the article 364 is that, it is a common crime, for it can be committed by anyone, and that it is punished with the same punishments than the article 363.
However, when the author of the facts is the owner or the person responsible for the production of a factory of food products, the article 364 states that “shall be punished, besides, with the punishment of special disqualification for profession, trade or industry from six to ten years.” A punishment which is also included in the catalog of punishments of the article 363 and with the same intensity. The reason for this is that, the article 363 is a special own crime which can be only committed by producers, distributors or merchants, thereby the punishment of special disqualification of the article 364 is only applicable to the owner or person responsible for the production of a factory of food products. A sensu contrario, this means that those who are not the owners or persons responsible for the production of a factory of food products, but who commit this crime of the article 364.1, cannot be punished with the punishment of special disqualification for profession, trade or industry, even though the article 364 is punished with the same punishments than the article 363.
The forbidden behavior consists in adulterating “with additives or other non-authorized agents susceptible of harming the health of the persons the food, substances, drinks aimed at food trading”. Making use of our dictionary we see that “to adulterate” means: “to fraudulently alter the composition of a substance”. In this case, the altered with additives or other non-authorized agents are the food, substances or drinks aimed at food trading. But, what is an additive? According to the Spanish Agency of Food Security and Nutrition, “The additives are substances which are added to the food with a technological purpose (for bettering their appearance, texture, resistance to microorganisms,…) in different stages of the manufacture, transportation or storage.” We should understand that, the use of the expression “or other non-authorized agents” by the legislator, is a way of including other substances which cannot be considered additives but have a similar function, and whose use should be also authorized, like, the food flavorings or food enzymes.
Besides, these additives or agents, cannot be authorized for their use in food products. This requisite transforms the first point of the article 264 into a blank penal norm which has to be completed with other in order to wholly unveil its meaning. Concretely, there exists three relevant Regulations from the European Union:
– Regulation (EC) Nº 1331/2008, of 16 December 2008, by which is established a procedure for common authorization of additives, enzymes and flavorings.
– Regulation (EC) Nº 234/2011, of 10 March 2011, of execution of the Regulation (EC) Nº 1331/2008, by which is established a procedure for common authorization of additives, enzymes and flavorings.
– Regulation (EC) Nº 1333/2008, of 16 December, about food additives.
We should understand that, all additive not authorized according to the previous Regulations (EC) are capable of causing harm to the health of the persons. This means that, this is a crime of hypothetical or abstract danger, which is consummated when the behavior is suitable to generate the risk forbidden by the norm, without being necessary that this risk is materialized.
The last objective requisite of the crime is that, the adulterated with additives or other non-authorized agents susceptible of causing harm to the health of the persons, should be food, substances or drinks destined to the food trading. Consequently, when this food, substance or drink has not this aim, the food trading, like the private consumption of the food, the behavior will be licit and cannot be punished according the article 364.
Concerning the subjective elements of the crime, it is a malicious crime, but it can be committed by grave imprudence by application of the article 367.
Art. 364.2:
In the second point of the article 364 we find another four forbidden behaviors:
1º To administer to the animals whose meats or products are aimed at human consumption not allowed substances that generate risk for the health of the persons, or in greater doses or for different aims than those authorized.
2º To slaughter livestock or destine their products to human consumption, knowing that they have been administered with the substances mentioned in the previous point.
3º To slaughter livestock to which have been applied therapeutic treatments with the substances to which the point 1º is referred.
4º To sell for public consumption the meat or products from the livestock without complying with the waiting periods established in the regulations.
For this purpose, it is relevant the Royal Decree 2178/2004, of 12 November, by which is forbidden the use of determined substances of hormonal and thyrostatic effects and beta-agonist substances used in the breeding of livestock. This makes us classify this article as a blank penal norm for it has to be completed by others.
Like before, we have to consider that when a substance is forbidden it is because it causes a risk for the health of the persons. The use of a forbidden substance automatically makes the behavior suitable to generate the forbidden risk, the risk for the health of the persons. This characteristic transforms the crime into a crime of hypothetical or abstract danger.
Like in the previous point, it is a malicious crime, which can be committed be grave imprudence too, by application of the article 367.
– Article 365:
The article 365 protects the potable waters or food substances aimed at public use or consumption by a collectivity of persons. The article 365 says:
“Article 365.
Shall be punished with the punishment of imprisonment from two to six years whoever poisons or adulterates with infecting substances, or other which may be gravelly harmful for the health, the potable waters or the food substances aimed at the public use or the consumption of a collectivity of persons.”
The first thing that we realize is that, it is a common crime which can be committed by anyone.
The forbidden behavior consists in poisoning or adulterating with infecting substances or others which may be gravelly harmful for the health, the potable waters or food substances aimed at public use or consumption by a collectivity of persons.
According to the dictionary, “to poison” means: “To put poison in something”. The other verb is “to adulterate”, which according to the dictionary means: “To alter fraudulently the composition of a substance”. In this case, the alteration should be done with an infecting substance or another which may be gravelly harmful for the health. Unlike before, the precept does not talk about non-authorized substances or poisons, thus there is no list gathering the forbidden poisons or substances. Therefore, the condition of poison or harmful substance will have to be proven during the oral trial.
In any case, this is another crime of hypothetical or abstract danger, thus, the norm forbids the suitability of the poison or infecting substance to have harmful consequences to the health of the persons. In other words, it is not necessary the effective putting into risk of the health of the persons.
On the other hand, it is a malicious crime, which can be also committed by imprudence, although the latter scenario within the ambit of the article 367 CP.
– Article 366:
Thanks to the article 366, a legal person may be responsible of the crimes established from the article 359 to the article 365. The article 366 says:
“Article 366.
When according to the established in the article 31 bis a legal person is responsible of the crimes gathered in the preceding articles of this Chapter, shall be punished with a punishment of fine from one to three years, of from the doble to the quintuple of the value of the substances and products to which are referred the articles 359 and following, or of the benefit which was obtained or could have been obtained, applying the quantity which is higher.
Attending to the rules established in the article 66 bis, the judges and courts may also impose the punishments established from the letter b) to g) of the point 7 of the article 33.”
– Article 367:
We have talked many times about it in the preceding articles, whenever we have mentioned the subjective elements of the crime, we have said that the behaviors of these crime could be also punished when there is grave imprudence applying the article 367. Perhaps, it is the moment of clarifying the difference between eventual malice and the conscious guilt (imprudence), and when there is grave imprudence. But before, the article 367:
“Article 367.
If the facts established in the preceding articles are carried out by grave imprudence, shall be imposed, respectively, the punishments inferior in degree.”
Firstly, in order to distinguish the eventual malice form the conscious guilt (imprudence), we should point out that, in the eventual malice as well as in the conscious guilt the active subject knows the possibility of carrying out the result forbidden by the norm, but there is a difference between both, in the conscious guilt the active subject believes that the result is not going to be produced, either by the scarce possibilities, or his skills, or the means that he employs. But in the eventual malice, the active subject notices the possibility of the forbidden result, acting anyway without worrying about the consequences.
Regarding the imprudence and more concretely the grave imprudence, the imprudence has been shaped by the doctrine as an infringement of a duty of care, by may be imposed either socially or by a norm. And the grave imprudence, is just the infringement of the most essential duties of care. This excerpt from the Spanish Supreme Court´s sentence (STS) number 5605/2023 explains it very well: “4.2.- In the current case, we have to depart from the fact that the article 368 CP punishes who by grave imprudence provokes some of the crimes of fire punished by the previous Sections.
In the sentence of the Plenary Session of this Chamber 317/2001, of 15 April, we said that in the Spanish Supreme Court ́s sentence number 1089/2009, of 27 October, to which we already referred, among others in the Spanish Supreme Court ́s sentence number 552/2018, of 14 November, it was said that the imprudent crime “…it appears structurally shaped, on the one hand, by the infringement of a internal duty of care (subjective duty of care or duty of foresight), which obliges to notice the presence of a cognizable duty and its gravity; and, on the other hand, the infringement of a external duty of care which obliges to externally behave in a way which does not generate not allowed risks, or, in their case, to act in a way in which the risks not allowed created by third parties or by alien factors are controlled or neutralized, whenever the duty of guarantor of this obliges him to control or neutralize the illicit risk unleashed. To these requisites we have to add, in the active behaviors, the causal link between the imprudent action and the result (natural or ontological link), and the objective imputation of the result to the imprudent behavior, in a way that the not allowed risk generated by this is the materialized in the result (normative or axiological link).
With regard to the difference between the grave imprudence and that which is not, the Spanish Supreme Court ́s sentence number said that, the grave imprudence “…has always wanted the infringement of the more essential cautions required in a determined activity”, and with similar terms was remembered in the Spanish Supreme Court ́s sentence number 537/2005, that “the jurisprudence of this chamber usually considers as grave the imprudence when essential duties have been infringed which can be demanded from the least cautious of the subjects.” It hasbeen reiterated the is rash, quality which referred to the imprudence has been assimilated to the grave, when it supposes “a total and absolute forgetting of the more essential duties of care and foresight.”
With other words, the Spanish Supreme Court ́s sentence number 1089/2009, aforementioned, was argued that “…the gravity of the imprudence is determined, from an objective or external perspective, in accordance with the importance of the infringement of the objective duty of care which the author commits, importance which is directly linked to the degree of risk not allowed generated by the active behavior of the accused with respect to the legal good protected by the penal norm, or, when applicable, the degree of risk not controlled when he has the duty of neutralizing the risks which affect to the legal good due to the behavior of third persons or merely casual circumstances.
The level of risk allowed is determined, by the degree of social utility of the behavior developed by the author (the greater the social utility the greater the levels of risk allowed). Lastly, the importance of the legal good threatened by the imprudent behavior has to be taken into account too: the greater the value of the legal good threatened, the lesser the level of risk allowed and the greater the requirements of the duty of care. On the other hand, and from a subjective perspective or internal (relative to the subjective duty of care), the gravity of the imprudence is measured by the degree of the foreseeability or of cognoscibility of the situation of risk, attending for this to the circumstances of the concrete case. In a way that, the greater the foreseeability or cognoscibility, the greater it is going to be the level of demand of the subjective duty of care and the graver it is going to be its infringement.”
– Article 368:
It is possible that it is the most important article of this Chapter, due to its extended application. The article 368 punishes any act aimed at promoting the consumption of drugs, the forbidden behavior is described in such broad terms, that the possibilities of being considered a necessary co-operator or accomplice are very limited, another aspect which indicates the importance given by the legislator to this precept. The article 368 says:
“Article 368.
Whoever executes acts of cultivation, elaboration or traffic, or in another way promotes, favors or facilitates the illegal consumption of toxic drugs, narcotics or psychotropic substances, or possesses them with those aims, shall be punished with the punishment of imprisonment from three to six years and fine of the triple of the value of the drug object of the crime if they are substances or products which cause grave harm to the health, and of imprisonment from one to three years and fine of the doble of its value in the rest of the cases.
Notwithstanding the established in the previous paragraph, the courts may impose the punishment inferior in degree attending to the scarce entity of the fact and the personal circumstances of the culprit. It is not possible to make use of this faculty if any of the circumstances mentioned by the articles 369 bis and 370 concurs.”
Let us now explain the meaning of the article 368, for this, we are going to read the precept from its beginning.
As soon as we start reading, we notice that this is a common crim, in the sense that it can be committed by anyone, for the precept does not require special qualities in the active subject. We obtain the nature of common crime from the use by the legislator of the expression “Whoever…”.
We continue reading and find the forbidden behavior, it consists in executing “acts of cultivation, elaboration or traffic, or in another way promotes, favors or facilitates the illegal consumption of toxic drugs, narcotics or psychotropic substances, or possesses them with those aims, …”. The most important aspect is the wide scope which the legislator has given to it, almost any act related with the illegal traffic of drugs fits within the precept, making very difficult to obtain a reduction in the punishment as an accomplice. Pay attention to this excerpt from the Spanish National High Court´s sentence number 3271/2024: “The jurisprudence from the Spanish Supreme Court has identified that the causal favoring of prohibited traffic determines the responsibility for this crime, identifying the cases of coauthorship, not only the participations in acts within a criminal organization, but also the acts of possession, keeping, storing of the drug for subsequently selling it; those of promotion or financing of its acquisition; organization of the traffic; watching of the drug; delivery, receipt or hiding of the drug; transporting and downloading of the drug; or manipulation of the substances which are aimed at trafficking. Among these behaviors of causal facilitation, the jurisprudence of this Chamber considers too a main actuation shaping the responsibility as author, those participating in the development of the criminal activity assuming functions of simple intermediation between participants in the illicit commerce, as well as those who put into contact sellers and buyers (Spanish Supreme Court´s sentences number 346/08, of 12 June or 573/12, of 28 June, among many others), besides the acts of watching, when there is a concertation for the actuation in the criminal illicit and a distribution of functions, among then the watching for preventing the difficulties derived from the intervention of the police (STS number 154/07, of 1 March); although, exceptionally, accessory ways of participation has been recognized in cases of minimal collaboration, this is, when auxiliary behaviors has been carried out in the benefit of the real drug dealer.”
Notwithstanding the above, and despite the broad scope which the legislator has given to the forbidden behavior, we have to stress that the self-consumption of drugs is licit. Therefore, the activities mentioned by the article 368 in the cases in which are carried out to satisfy a necessity of self-consumption, are licit. In relation with the above, the Spanish Provincial Court of Madrid´s sentence number 617/2024 says: “Nonetheless, in the cases of possession the jurisprudence of the Supreme Court has pointed out that the typical element of the intention of trafficking, is a judicial inference, a deduction that the court carries out form the accredited objective elements (Spanish Supreme Court 1142/2001, of 12 June). And within such inference, the quantity of drug ordinarily constitutes the most important data for, through it, being able to affirm the aim of the possessed drug. But alongside the quantity of the drug there exist other elements which may help to infer that the drug was aimed at trafficking, for example, the tools to determine its weight, those for packing it, adulterating means or tools for trading with it, the circumstances and means which the subject has that does not correspond with his economic position, singularly his condition of not consumer nor addict to the drugs and any other revealing his intention of participating in the aforementioned behaviors. However, when it is a little quantity possessed by a person who consumes the kind of drug possessed, and there is no other evidences, it is not going possible to affirm that the drug was aimed at trafficking, being possible to have the doubt with only this evidence, the reason by which he would have to be acquitted (STS number 1321/2003 of 16 October), thus in these cases the jurisprudence has considered that the drug was aimed at trafficking when its quantity exceeds the average supply of a consumer. In this sense, the National Institute of Toxicology points out that normally the average consumer covers the consumption of drugs of five days (this criterion is followed, among others, by the Spanish Supreme Court´s sentences number 500/2006, of 10 May, 398/2006, of 13 March, 720/2006, of 12 June and 415/2006, of 18 April). In this way, following the criterion proportionated by the such National Institute of Toxicology, the Second Chamber of the Supreme Court´s agreement, of 19 October, sets the average daily dose of cocaine at 1.5 grams and of heroin at 0.6 grams.”
From the legality of the self-consumption, another scenario has been legalized by the courts, the shared-consumption, which in many cases has been alleged by the associations of cannabis for claiming the licitness of the consumption of cannabis according their articles of association, mainly, that their members have confirmed their previous conditions of addicted to the substance and that the consumption of cannabis only takes place within the association´s facilities. But in the majority of the cases, the persons in charge of these kind of associations have been condemned according to the article 368. This is excerpt is interesting, STS number 3355/2024: “The appealed sentence follows the line marked by the STS number 484/2015, of 7 September, the first of recent epoch, after the previous STS number 1377/1997, of 17 November, this Court pronounced regarding the cultivation of cannabis in great quantities aimed at supplying consumers assembled in associations constituted to that purpose, and which declared the illicitness of the behaviors concreted in organizing a system of cultivation, supply and acquisition of toxic substances with the aim of sharing or delivering it to third persons, although the acquirers have previously compelled to be included in a list, club, or association or similar group, and even when there is no profit intention. Doctrine which at the beginning was not supported by all the Magistrates, but due to unifying aim that has the jurisprudence as a source of certainty, today it has been consolidated by an important number resolutions.”
In any case, the licitness of the share-consumption is another consolidated criterion. The STS number 3355/2024 says: “The STS, of 13 July, condensed the majoritarian doctrine of this Chamber concerning it. After mentioning many sentences which are precedents in relation to the denominated “cannabis associations” or “cannabis clubs”, points out “All of them form a doctrinal body where after admitting that the self-consumption is not illicit, the shared-consumption or plural self-consumption between addicts does not constitute a penally punishable behavior (STS 1102/2003, of 23 July, 850/2013, of 4 November and 1014/2013, of 12 December, among others); they remember the illicitness of the shared-consumption, doctrine of jurisprudential creation and which constitutes a logic consequence of the illicitness of the self-consumption, only is applicable when three circumstances or requisites are met (STS 91/2018, of 21 February, citing the STS 360/2015, of 10 June):
1º) That they are habitual consumers or addicted who are assembled to consume the substance. This limitation is intended to avoid cases of favoring of illegal consumption by third parties, which is precisely the behavior that precisely is punished by the precept, save those who already were habitual consumers of the substance.
2º) Its consumption has to be carried out “in a closed place”. The aim of this requirement is to avoid the public promotion of the consumption and spreading of the substance to those who are not part of the initially assembled.
3º) The act has to be circumscribed to a reduce group of addicts and they have to be identifiable and determined.
4º) The cases in which the quantity of drug exceeds the immediate consumption are not included. Consequently, it is only applied to reduced quantities, limited to the daily consumption.”
Alongside the licit cases of self-consumption and shared consumption, we need to have another important aspect, the substance which is cultivated, trafficked or elaborated, has to be considered a drug according to the United Nations Conventions on that matter of which Spain is part, since they internal legal norms (art. 96.1 of the Spanish Constitution). Of these Conventions, two are especially relevant: The Convention on drugs of 1961, amended by the Protocol of 1972, and the International Convention on psychotropic substances of Vienna of 1971.
Now the following question arises, a substance for being considered drug has to have a minimum of its active principle, otherwise the substance would be as harmless as any other and the behavior would pass to be licit. The STS number 3641/2024 says: “Indeed, this Chamber, in reiterated jurisprudence, like the STS 726/2015, of 24 November, warns that it is sufficiently consolidated a criterion, according to which, only has to be considered toxic drug or narcotic, in the sense of the article 368 CP, that substance which is apt to produce the effects which belongs to it. And this, depending on the quantity of active principle concretely registered and the capacity of production for negatively affecting the health of an eventual affected ( SSTS 154/2004, of 13 February; 1671/2003, of 5 March; 1621/2003, of 10 February; or 357/2003, of 31 January). Even more in those cases in which the object considered is not adapted to the definition, nor is it included United Nations Conventions´ lists on that matter (specially the the Convention on drugs of 1961, amended by the Protocol of 1972, and the International Convention on psychotropic substances of Vienna of 1971), which besides being ratified and integrate therefore the internal normative, are tools that jurisprudence usually handles in order to give content to the normative element of narcotics and in their case psychotropics contained in the article 368 CP.”
However, not always it is like this. Concretely, in the case of cannabis derivatives the criterion of the Supreme Court is to consider them always as drug, regardless of the percentage of principle active that they contain. It is based on the fact that, the majority of the drugs are treated by a chemical process, like for example the cocaine or heroin, but in the case of the cannabis derivatives the drug is consumed in its natural state. The aforementioned sentence says: “4. From this normative it is drawn:
a) Independently from its content in THC (in other words, the marihuana is not assessed depending on its THC percentage but in so far as it has flowers along with leaves and resin art. 1 of the Convention of 1961), thus it has the consideration of narcotics, and its production, manufacture, exportation, importation, distribution, trade, use and possession has to be limited to medical and scientific aims (article 4c of the Convention of 1961).
b) The cited normative is not of application to the cultivation of the plants of cannabis with industrial aims (exclusively aimed at the obtention of fiber, grain and seeds), according it is established by the article 28 of the Convention of 1961, and whenever it lacks the narcotic principle according the article 9 of the Law 17/1967, of 8 April.
c) Currently, this industrial aim, according to the Regulation (EC) 2021/2115, is applied on those which has a content in the narcotic principle tetrahydrocannabinol (THC) not greater than 0,3 % (THC = 0,3 %), which modified the 0,2 % THC in force at the epoch of the resolutions; and this index is the exception to the consideration of the cannabis as narcotic.”
The aforementioned sentence continues: “In the derivatives of cannabis, like the STS 378/2020, of 8 July remembers among many others, the percentage of the active principle, tetrahidrocannbinol (THC) does not indicates that only in this percentage it is hash and the rest coming from mixture or adulteration; it is entirely marihuana or hash, regardless the percentage of THC, which only determines its power (STS 393/2015, of 12 June); thereby everything is narcotic, for like the STS 732/2012, of 1 October, points out, unlike the heroin or cocaine, which are substances that are obtained in state of pureness by chemical processes, altering their initial composition on being mixed with other additives, the cannabis derivatives, in their different presentations, are vegetable products which are obtained from the own plant without necessity of a chemical process (it is obtained by drying and pressing of the cannabis), thus the the active substance, THC, is never present in a pure state, being indifferent its degree of concentration once proven its toxicity.”
And the aforementioned sentence continues: “Difference, which would be significant in its case, for inferring the aim of trafficking of the possession or for determining if we are before a quantity of great importance; for since the Second Chamber of the Supreme Court´s agreement, of 19 October 2001, with the support of a previous report from the National Institute of Toxicology, specifies the application of the specific aggravating factor of great importance, in the different substances, from the 500 doses calculated upon the quantity corresponding to the daily consumption of an average addict; 10 kilograms for the marihuana (20 grams of average daily consumption) and 2,5 kilograms for hash (5 grams of average daily consumption).
8. This Agreement considered necessary to have a generic reference for unifying the decisions from the courts, and this is how was given publicity to minimum psychoactive doses which were facilitated by the National Institute of Toxicology; which established for the hash, 10 milligrams (0,01 grams); criteria which was ratified in another and subsequent Agreement of 3 February 2005, in which was agreed to continue maintaining this criteria up to a legal reform or another criteria was adopted or an alternative decision. Criterion which has shaped the jurisprudence of this Chamber, leaving out of the penal precept for lacking the minimum toxicity the sharing of substances which due to their lack of harmful effects do not entail an abstract risk to the persons; although it is warned that the doctrine of the licitness has to be exceptionally applied, and concretely in the cases in which the qualitative denaturalization or the scarce quantity of the substance delivered determines the absolute lack of its potentially harmful effects which are the basis for the legal prohibition.”
This is the literal content of the Second Chamber of the Supreme Court´s agreement, of 19 October 2001:
“1. The specific aggravating factor of a quantity of great importance of toxic drugs, narcotics or psychotropic substances, established in the number 3 of the article 369 of the Penal Code, is determined from the five hundred doses referred to the daily consumption which appear actualized in the National Institute of Toxicology of 18 October 2001.
2. For specifying the aggravating factor of great importance it is going to be maintained the criterion followed by this Chamber of only having into account the toxic or basic substance, in other words it is reduced to pureness, with the exception of the hash and its derivatives.”
In other to finish with the forbidden behavior, we have to say that the crime of drugs trafficking is a crime of hypothetical or abstract danger, which has as legal good the public health, and therefore, it is consummated when the behavior is suitable to harm this legal good, but without being necessary that the legal good has suffered a real risk or a harm.
Now, we are able to advance again, and we realize a detail that it is not very usual. The legislator has decided to establish two groups of punishments, depending on the harmfulness of the substance. There is a punishment of imprisonment from three to six years and fine of the triple of the value of the drug when they are product or substances which cause a grave harm to the health, and a punishment of imprisonment from one to three years and fine of the doble of the value of the drug in the rest of the cases. In the practice only the cannabis derivatives are classified in the second group, while the first is formed by the rest of drugs, like cocaine, heroin, amphetamines, …
In order to determine the value of the drug, the article 377 CP establishes the criterion that it is going to be the final price of the product or, in its case, the reward or benefit obtained by the culprit, or which he might have obtained.
Regarding the subjective elements of the crime, it is a malicious crime which cannot be committed by imprudence. There is direct malice, when the active subject knows the objective elements of the crime and despite this, he decides to execute them. In this case, when he is dealing with drugs favoring their consumption. We cannot reject its commission by eventual malice, which takes place when a person knows that it is possible to cause the harms and results forbidden by the norm with his behavior, but he continues with the action.
And we continue, because, although the article 368 does not have a second point, it does have a second paragraph. In its second paragraph we find an attenuated subtype of the basic type of the first paragraph. It gives the possibility to judges and courts of imposing the punishment inferior in degree of those punishments established in the first paragraph, attending to the scarce entity of the facts and the personal circumstances of the culprit. Like we said before, this possibility has been shaped as a faculty of the courts and its concession is not an obligation, but always that it has been requested by the culprit the courts must motivate either its granting or not granting, although in the cases in which the culprit does not request it, it is enough with motivating its concession. Otherwise, when the decision was not motivated, the right to a process with all the guarantees would be infringed (art. 24 of the Spanish Constitution).
Like you can imagine, the cases in which an accused does not request the application of this attenuated subtype are rare, that makes this second paragraph of the article 368 very popular. The Spanish Provincial Court of Barcelona´s sentence number 3526/2024, with the help of the Spanish Supreme Court´s jurisprudence, sums up the requisites for its concession as follows: “Regarding the possible application of the attenuated subtype established in the article 368.2 CP, the Spanish Supreme Court´s jurisprudence has pointed out:
a) There is scarce objective entity when it is the isolated sale of a little quantity of drug, with a reduce amount of toxic substance, in cases considered the last step in the drug trafficking.
b) The regulation of the article 368.2 CP does not exclude the cases in which the fact that is specifically attributed to the accused consists in a participation of very scarce entity, in an activity of traffic more wide carried out by a third party, even when to this activity cannot be classified of very scarce entity.
c) The personal circumstances of the culprit are referred to situations, data or elements which shape his social or individual surroundings, his criminal records, his condition or not of drug addict, his age, his studies, his psychological maturity, his family surroundings, his work activities, his behavior after the crime and his possibilities of integrating himself in the society.
d) When the gravity of the unjust has an entity so small that it nears it to the limit of illicitness, the application of the attenuated subtype is not conditioned to the express concurrence of the personal circumstances favorable to the culprit, being enough in these cases with not existing any unfavorable circumstance.
e) The aggravating factor of recidivism is not an unsurmountable obstacle for applying the attenuated subtype, in cases in which we are before a behavior close to the minimum limit of punishability, from an objective point of view, for avoiding that it produces a doble effect harming the accused: increasing the punishment as aggravating factor and blocking the application of the subtype.
f) When, besides of the conviction which determines the application of the recidivism, other activities concur for the same criminal activity of drug trafficking, the dangerousness of the culprit from the perspective of the protection of the legal good safeguarded by the crimes against the public health, with a lasting dedication to such activity, does not justify the application of the subtype from the perspective of the sense and end of the norm.
g) One of the main data which may help the interpreter to consider in the matter of crimes against the public health that the fact has scarce entity will be, the reduce amount of the drug handled. The adjective “scarce” evokes the little importance of the behavior, facts which must be less grave than those of the basic type.”
– Article 369:
What we find in the article 369 is an aggravated subtype of the previous one. The punishment superior in degree of those established by the previous article have to be imposed and fine of four times the value of the drug, when any of the circumstances mentioned in the article 369 concur. The article 369 says:
“Article 369.
1. Shall be imposed the punishments superior in degree to those established in the previous article and fine of the quadruple when any of the following circumstances concur:
1ª The culprit is authority, public servant, doctor, social worker, teacher or educator and acts exercising his position, profession or trade.
2ª The culprit participates in other organized activities or whose execution is facilitated by the commission of the crime.
3ª The facts are committed in establishments open to the public by the responsible or employees of the them.
4ª The substances to which is referred the previous article are facilitated to minors, individuals with intellectual disabilities or People undergoing detoxification or rehabilitation.
5ª The quantity of the cited substances object of the behaviors to which is referred the previous article is of great importance.
6ª The referred substances are adulterated, manipulated or mixed among them or with others, increasing the possible harm to the health.
7ª The behaviors described in the previous article takes place in educational institutions, in military premises or establishments, in penitentiary establishments or detoxication or rehabilitation centers, or their proximities.
8ª The culprit employs violence or exhibits or makes use of weapons for committing the fact.”
From these specific aggravating circumstances, we should comment two, the 5ª and 8ª. The fifth because we have to interpret it with the help of the Second Chamber of the Supreme Court´s agreement, of 19 October 2001, according to which “1. The specific aggravating factor of quantity of great importance of toxic drugs, narcotics or psychotropic substances, established in the third number of the article 369 of the Penal Code, is determined with the five hundred doses referred to the daily consumption which appears actualized in the National Institute of Toxicology´s report of 18 October 2001.” For example, in the case of hash this report estimates that the daily consumption is of 5 grams, then, the quantity of great importance is of 2,5 kilograms. Another example, this report considers that the daily consumption of MDMA is of 480 milligrams, then, the amount of great importance is of 240 grams.
And the eighth because the employment of violence or the exhibition of weapons or even their use to commit the fact, may give rise to the commission of other crimes. When violence has been employed, the facts can be also classified as a crime of injuries (art. 147 CP), and the same is going to happen when weapons have been used. When the violence does not cause injuries, or the weapons are simply exhibited, the facts can be also classified as a crime of coercions (art. 172 and following CP) or even of threats (art. 169 and following CP). The question we have to resolve now is the relationship between the crimes of injuries, threats or coercions, and the crime against the public health of the article 368 with the aggravating factor of the article 369. The first thing we need to take into account, is the principle non bis in idem, which impedes to convict a person more than one time for the same facts. This applied to our case means, that his principle impedes to punish the employment of violence or intimidation as an aggravating factor of the article 369 and at the same time, like an independent crime. In my opinion, the coercions, threats or injuries has to have enough relevance for being penally considered, in other words, they have to be by themselves a crime for being possible to apply the aggravating factor of the article 369, but, like we have said before, they cannot be punished two times. In order to solve this problem, we have the solution in the article 8 CP, I personally among the options this precept offers would choose the fourth, “4ª Failing the previous criterions, the gravest penal precept shall exclude those which punish the fact with a less grave punishment.” Why? Because this is the criterion followed by the legislator when the facts have been committed within a group or criminal organization, being this an aggravating factor and an independent crime (art. 570.2 quarter). Then the judges and courts are going to have to options, either they punish the facts as a crime of the article 368 with the aggravating factor of the article 369, or they punish the facts as a crime of the article 368 in a medial concurrence of crimes with the crime of injuries, or threats, or coercions, having to choose the option which applies the harshest punishment.
– Article 369 bis:
We can consider the article 369 bis as an independent article altogether, for apart from the fact of punishing the same behavior than the article 368, new objective elements are added to the crime, the membership to a criminal organization, and new punishments are imposed. The article 369 says:
“Article 369 bis.
When the facts described in the article 368 have been committed by those who are members of an organized crime group, shall be imposed the punishments of imprisonment from nine to twelve years and fine of the quadruple of the value of the drug if they are substances and products which cause a grave harm to the health and of imprisonment from four years and six months to ten years and the same punishment in the rest of the cases.
To the bosses, administrators or persons in charge of the organization shall be imposed the punishments superior in degree to those established in the first paragraph.
When according to the stablished in the article 31 bis a legal person is responsible for the crimes established in the two previous articles, shall be punished with the following punishments:
a) Fine from two to five years, or from the triple to the quintuple of the value of the drug when the resulting quantity is higher, if the crime committed by the physical person has a punishment of imprisonment of more than five years.
b) Fine from one to three years, or from the doble to the quadruple of the value of the drug when the resulting quantity is higher, if the crime committed by the physical person has a punishment of imprisonment of more than two years not included in the previous point.
Attending to the rules established in the article 66 bis, the judges and courts may also impose the punishments established in the letters b) to g) of the point 7 of the article 33.”
Pay attention to the fact that, in this case we should reject the application of the rule established in the article 570.2 quarter CP. It is true that, the membership to a criminal organization is already punished by other precept of this CP, the 570 bis, it is also true, that the rule of the article 570.2 quarter is for these cases, but it is not less true, that the article 369 bis has not been shaped as an aggravated subtype, as a specific aggravating factor, which allows the courts to choose between the application of a basic type and its aggravating factor or the application of a basic type and another basic type. In this case, the membership to a criminal organization is one more objective element of the crime, it is impossible to punish the facts according to the article 368 and to the article 570 bis, because there is an article 369 bis which already covers all the elements of the crime.
Then, to the objective elements of the article 368, we should add the membership to a criminal organization, but maintaining what we saw in relation to the subjective elements.
And another important question is that, the article 369 bis says “organized crime group”, not “criminal organization” like the article 570 bis, but on the other hand, there exists great similarity between both names to infer that the legislator is referring to the same thing. According to the above, within the ambit of the article 369 bis would not be possible to include the criminal groups of the article 570 ter. The article 570 bis says, “For the purpose of this Code it is understood by criminal organization the aggrupation formed by more than two persons with stable character or for indefinite time, which coordinately and concertedly distribute among themselves tasks and functions with the end of committing crimes.” And the article 570 ter says, “For the purpose of this Code it is understood by criminal group the union of more than two persons which, without having one or more of the characteristics of the criminal organization defined in the previous point, has as end or aim the concerted commission of crimes.” Therefore, the difference between the group and criminal organization is the stable character and complex organization of the latter. In this sense, the Spanish National High Court´s sentence number 3260/2024 says: “There are many Spanish Supreme Court´s sentences which define the criminal organization. Among those more significant it is possible to cite the sentence of 2 January 2020: “The article 570 bis defines the criminal organization as: “The aggrupation formed by more than two persons with stable character or for indefinite time which, concerted and coordinately, distribute different tasks or functions among them with the aim of committing crimes, as well as the reiterated commission of misdemeanors.” Therefore, the cases of transience, before included in the concept which appeared in the article 369 of the Penal Code. On the other hand, the article 570 ter in fine, describes el criminal group as “the union of more than two persons which, without having one or more of the characteristics of the criminal organization defined in the preceding article, has as end or aim the concerted commission of crimes or the concerted and reiterated commission of misdemeanors”. Therefore, the criminal organization and group has in common the union or aggrupation of more than two persons and the end of committing concerted crimes. But, whereas the criminal organization requires, besides, the stability or constitution for indefinite time, and the concerted and coordinated distribution of tasks or functions (both requisites at the same time: stability and distribution of tasks), the criminal group can be appreciated when neither of these requisites concur, or when only one of them concur. Thereby, the concept of criminal organization is reserved to those cases of more complex organizations, for, it is the temporal stability and the structural complexity what justifies a harsher punishment attending to its greater capacity of harming. Therefore, for appreciating the criminal organization it is not enough any structure in which the functions among his members have been distributed, that may be found in any union or aggrupation of various persons for committing crime, it is necessary to appreciate a distribution of responsibilities and tasks with enough consistency and stiffness, even temporal, for surpassing the criminal possibilities and the ensuing risks for the legal goods appreciable in the cases of codelinquency or, even, of criminal groups.”
Besides, this article 369 bis has a second part, making responsible the legal persons of the crime of the article 368, and establishing the punishments applicable in those cases.
– Article 370:
In the article 370 we find another aggravated subtype of the article 368, for it clearly indicates that the punishment superior in one or two degrees of that imposed in the article 368, shall be imposed when any of the circumstances mentioned in it concur. The article 370 says:
“Article 370.
Shall be imposed the punishment superior in one or two degrees of that established by the article 368 when:
1º Minors or handicapped persons are used to commit these crimes.
2º When they are the bosses, administrators or persons in charge of the organizations to which is referred the second circumstance of the first point of the article 369.
3º The behaviors described in the article 368 are of extreme gravity.
They are considered of extreme gravity in the cases in which the quantity of the substances to which is referred the article 368 notably exceeds that considered of great importance, or ships, vessels or airplanes have been used as specific means of transport, or the indicated behaviors have been carried out simulating international trading operations between companies, or international trading networks have been used for this kind of activities, or when three or more of the circumstances established in the article 369.1 have concurred.
In the cases of the previous numbers 2º and 3º the culprits shall be punished, besides, with fine of the triple of the value of the drug object of the crime.”
A question which may arise after reading this article 370 is, what happens when any of the circumstances contained in the article 370 concurs along the membership to criminal organization of the article 369 bis? I understand that, in these cases the courts may be able to choose to punish the facts according the article 369 bis or the article 370. The choice seems evident, when in the case of applying the article 370 the punishment of the article 368 is only the superior in one degree, for in those cases the article 369 should be applied because it imposes a harsher punishment of imprisonment. But the question does not seem as clear as before, when applying the article 370 has to be imposed the punishment of the article 368 increased in two degrees, for in those cases, when besides they are substances which cause grave harm to the health, the punishment of imprisonment is between 9 years and one day and 13 years and 6 months, what exceeds the punishment established in the article 369 bis, therefore being the article applicable the 370. All this, previously taking into account that, the fourth rule of the article 8 CP is the applicable.
Returning to the article 370, among the three aggravating factors there is one which is difficult to interpret, the third. Let us now analyze it in detail. It says that the behaviors described in the article 368 are of extreme gravity when: 1) The quantity of substances to which is referred the article 368 notably exceeds that considered of great importance; 2) Ships, vessels or airplanes have been used as specific means of transport; 3) The behaviors indicated have been carried out simulating international trading operations between companies; 4) International trading networks have been used for this kind of activities, or; 5) When three or more of the circumstances established in the article 369.1 have concurred.
Let us start with the first. In order to know when the quantity of a substance notably exceeds that considered of great importance, we have to read the Second Chamber of the Supreme Court´s agreement, of 25 November 2008. According to this agreement: “The application of the aggravating factor of the article 370.3 CP. Referred to the extreme gravity of the quantity of the narcotic substance, shall be applied in all those cases in which the object of the crime is represented by a quantity which exceeds the resulting from multiplying by one thousand the quantity accepted by the Chamber as standard for appreciating the aggravating factor of great importance.” For example, the hash, if the quantity of great importance starts with 2,5 kilograms of this substance, for applying the hiperaggravation of the article 370 is needed 2.500 kilograms of hash. And in the case of the MDMA, 240 kilograms. Another question which may arise in relation with this hiperaggravation is that, if the article 369 imposes the punishment superior in degree for the quantities of great importance, and the article 370 gives the possibility to the courts of choosing between the punishment superior in one degree or two degrees of that established in the article 368, whenever the limit established by the Supreme Court is reached for applying the hiperaggravation the courts should impose the punishment of the article 368 increased in two degrees, otherwise, what would be the sense of distinguishing between both scenarios?
The second is that, ships, vessels or airplanes had been used as specific means of transport. For interpreting this circumstance, we have to make use again of the Second Chamber of the Supreme Court´s agreement, of 25 November 2008, which also says: “For the purpose of the article 370.3 CP, it is not possible to consider that all vessel integrates the concept of “ship”. The aggravating factor is reserved for those ships with their own propulsion or eolian propulsion and, at least, one deck, with certain capacity of charge and suitable to make long travels. Therefore, the speedboats are excluded from this concept.” On the other hand, we should understand that, regardless of its size, the hiperaggravation is applicable to any airplane.
The third is that, the indicated behaviors have to be carried out simulating international trading operations between companies. This can be another clear example of overlapping of the article 369 bis and 370. If a criminal organization, is the aggrupation formed by more than two persons with stable character and complex organization, this definition is very similar to that of a company, the only difference is that the businesses of a company are licit and those of a criminal organization illicit. Perhaps the difference between both is this, there is a criminal organization when the company is a mere cover, and then, the facts have to be punished according the article 369 bis. But there exists a simulation of international trading operations between companies, being applicable the article 370, when the company has a licit activity, but occasionally it has incurred in the behavior forbidden by the article 370.
The fourth is, when International trading networks have been used for this kind of activities. In relation with this circumstance, we say the same than before. I do not know what we should understand by international network, but it looks like a criminal organization. For me, another clear case of overlapping between the article 369 bis and 370.
And the fifth, when three or more of the circumstances established in the article 369.1 have concurred. We cannot add much more, beyond the fact that when two of the circumstances mentioned in the article 369.1, it is going to be possible only to impose the punishment established in the article 368 increased in one degree.
– Article 371:
The article 371 punishes whoever manufactures, distributes, trade or has in his power equipment, material or substances included in the table I and II of the United Nations Convention of Vienna, of 20 December 1988. The article 371 says:
“Article 371.
1. Whoever manufactures, transports, distributes, trades or possesses equipment, materials or substances enumerated in the table I and II of the United Nations Convention of Viena, of 20 December 1988, on illicit traffic of narcotics and psychotropic substances, any other additional products of the same Convention or which may be included in other future Conventions of the same nature, ratified by Spain, knowing that they are going to be utilized in the cultivation, production or illicit manufacture of toxic drugs, narcotics or psychotropic substances, of for this aims, shall be punished with the punishment of imprisonment from three to six years and fine of the triple of the value of the goods.
2. Shall be imposed the established punishment in its superior half when the person who carries out the facts is a member of an organization dedicated to the aims before pointed out, and the punishment superior in degree when they are the bosses, administrators or persons in charge of these organizations or associations.
In such cases, the judges or courts shall impose, besides the corresponding punishments, the special disqualification for exercising profession or industry from three to six years, and the rest of the measures established in the article 369.2.”
Art. 371.1:
The first thing that we realize is that, it is a common crime, which can be committed by anyone, regardless his profession, or any other characteristic which may distinguish him from the rest of the people.
The forbidden behavior consists in manufacturing, distributing, trading or possessing, “…materials or substances enumerated in the table I and II of the United Nations Convention of Viena, of 20 December 1988, on illicit traffic of narcotics and psychotropic substances, any other additional products of the same Convention or which may be included in other future Conventions of the same nature, ratified by Spain…”. Here we have the same problem than with the article 368, the legislator makes a wide description of the forbidden behavior, not leaving much room for secondary ways of participation in the crime, the accomplices.
We also have to take into account that the materials or substances has to appear enumerated in the table I or table II of the United Nations Convention of Vienna, of 20 December 1988, on the illicit traffic of narcotics or psychotropic substances, and whatever any other products added to the same Convention or included in future Convention of the same nature, ratified by Spain. This requisite transforms this norm into a blank penal norm, since it requires to be completed by others in order to unveil its meaning altogether.
We continue reading and we find a subjective element of the crime. The described behavior has to be carried out “…knowing that they are going to be utilized in the cultivation, production or illicit manufacture of toxic drugs, narcotics or psychotropic substances, of for this aims,…”. Being a subjective element, it has to be deduced from external and objective elements of the crime.
Beyond that, it is a malicious crime which cannot be committed by imprudence. We cannot reject its commission by eventual malice.
Art. 371.2:
In the second point of the article 371 we find an aggravated subtype of the basic type described in the first point. The punishment established in the first point shall be imposed in its superior half when the forbidden behavior is carried out within an organization dedicated to these aims. Remember that, a criminal organization, is the aggrupation formed by more than two persons with stable character and a complex organization. Remember also that, thanks to the principle non bis in idem it is not possible to punish two times the same person for the same facts, therefore, in accordance with the article 570.2 CP the fourth rule of the article 8 CP has to be applied. Applying this rule to our case, the courts have to impose the harshest punishment from the two options that they have, they can punish the facts according the article 371 and the aggravating factor of the third point, or they can punish the facts according the article 371 in a medial concurrence of crimes with the article 570 bis.
The punishment shall be increased to the superior in degree, when the culprit is the boss, administrator or person in charge of this organization or association.
– Article 372:
The article 372 establishes the punishments of absolute or special disqualification, apart from the already established by the corresponding articles, when the facts are carried out by a person with a specific position or profession. The article 372 says:
“Article 372.
If the facts established in this chapter are carried out by businessman, intermediary in the financial sector, doctor, public servant, social worker, teacher or educator, exercising his position, profession or trade, shall be punished, besides the corresponding punishment, with special disqualification for public position or employment, profession or trade, industry or commerce, from three to ten years. The punishment of absolute disqualification shall be imposed from ten to twenty years when the referred facts were carried out by authority or agent, exercising his position.
For that purpose, it is understood by doctor, the physicians, psychologists, the persons who have a sanitary title, the veterinaries, the pharmacists and his shopkeepers.”
Then, there exists a great difference between being a businessman, an intermediary in the financial sector, doctor, public servant, social worker, teacher or educator, or on the other hand, being authority or agent, because whereas the formers are punished with a special disqualification, the latter are punished with absolute disqualification. Remember that:
“Article 41.
The punishment of absolute disqualification produces the definitive privation of all the honors, employments and public positions which the punished has, even when they are elective. It produces, besides, the incapacity to obtain these or any other honors, public office or employment and that of being elected for public office, during the time of the punishment.”
“Article 42.
The punishment of special disqualification for public employment or office produces the definitive privation of the employment or position upon which it falls, even when it is elective, and of the honors attached to it. It produces, besides, the incapacity to obtain them or other analogous, during the time of the conviction. In the sentence have to be specified the employments, positions and honors upon which the disqualification falls.”
“Article 45.
The special disqualification for profession, trade, industry or commerce or other activities, whether retributed or not, or any other right, which has to be expressly concreted and motivated in the sentence, deprives the convicted of the faculty of exercising them during the time of the conviction.
The judicial authority may limit the disqualification to determined activities or functions of the profession or trade, whether retributed or not, allowing, if that is possible, the exercise of those functions not directly related with the committed crime.”
According to the article 24 CP:
“1. For the penal purpose it is understood by authority who by himself or as member of a corporation, court or collegiate organ has authority or exercised own jurisdiction. In any case, the members of the Congress of Deputies, of the Senate, of the Autonomous Communities´ Legislative Assemblies and of the European Parliament shall be considered authority. The public servants of the Attorney General´s office and the Public Prosecutors of the European Attorney General´s office shall be also considered authorities.
2. Public servant is everyone who by immediate disposition of the law or be election or by appointment of the competent authority participates in the exercise of the public functions.”
And according to the seventh article of the Organic Law 2/1986, of State Security Forces and Bodies: “1. Exercising their functions, the members of the State Security Forces and Bodies shall have for all legal purposes the character of agents of the authority. This includes, the National Police, the Civil Guard and the autonomic and local police. But not the members of private security.
– Article 373:
The article 373 says:
“Article 373:
The article 373 says:
“Article 373.
The provocation, conspiracy or proposal to commit the crimes established in the articles 368 to 372, shall be punished with the punishment inferior in one or two degrees of the corresponding, respectively, to the facts established in previous precepts.”
Here we have to remember the articles 17 and 18 of the CP:
“Article:
1. The exists conspiracy when two or more persons are concerted for committing a crime and they commit it.
2. The exists proposal when who has decided to commit a crime invites other or others persons to participate in it.
3. The conspiracy and the proposal to commit a crime only shall be punished in the cases especially established in the law.”
“Article 18.
1. There exists provocation when directly it is incited by the print, the broadcasting or any other means of similar efficacy, which facilitates the publicity, or before many persons, the commission of a crime.
The apology is, for the purpose of this Code, the exposition, before many persons or by any means of diffusion, of ideas or doctrines which praise the crime or his author. The apology is only a crime as a way of provocation and if by its nature and circumstances constitutes a direct incitament to commit a crime.
2. The provocation shall be exclusively punished in the cases in which the Law establishes it. If the provocation was previous to the commission of the crime, it shall be punished as induction.”
– Article 374:
The article 374 says:
“Article 374.
In the crimes established in the second paragraph of the point 1 of the article 301 and in the articles 368 to 372, besides the punishment which correspond to the committed crime, shall be seized the toxic drugs, narcotics or psychotropic substances, the equipment, materials and substances to which is referred the article 371, as well as the goods, means, tools and benefits according to the established in the articles 127 to 129 and the following special norms:
1ª Once the sentence is firm, the stored examples or the seized totality shall be destroyed, in the cases in which the judicial organ has ordered their conservation.
2ª The goods, means, tools and benefits definitely seized by sentence, which will be possible to apply neither to the satisfaction of the civil liabilities derived from the crime nor to the procedural costs, shall be wholly given to the State.”
Like you are able to observe the article 374 add to the general rules applicable to every seizure, two more.
– Article 375:
The article 375 extends the effects derived from recidivism to the convictions by any foreign judge or court, whenever they are for crimes of the same nature than those established in the articles 361 to 372. Remember that, in principle, the recidivism can be only appreciated when the convicting court is from a country which is a member of the European Union (art. 22.8 CP). The article 375 says:
“Article 375.
The convictions from foreign judges or courts for crimes of the same nature than those established by the articles 361 to 372 of this Chapter shall produce the effects of recidivism, save when the criminal record has been cancelled or may be cancelled according to Spanish Law.”
In accordance with the CP, “There is recidivism when, committing a crime, the culprit has been firmly convicted for a crime comprehended in the same title of this Code, whenever it is of the same nature.” (art. 22 CP).
The more important effects of the recidivism when it is appreciated by a convicting court are two: 1) It is a generic aggravating factor (art. 22.8ª CP), and; 2) The courts applying the punishment of malicious crimes, “When the aggravating circumstance of recidivism concur with the qualification that the culprit had been firmly convicted, at least, for three crimes comprehended in the same title of this Code, always that they are of the same nature, may apply the superior in degree of the established by the law for the crime committed, taking into account the preceding convictions, as well as the gravity of the crime committed.” (art. 66 CP).
The convicted may obtain the cancellation of his criminal records when he meets the requisites marked by the article 136 CP, in other words, when he has not committed a new crime in the following periods:
a) Six months for minor punishments.
b) Two years for the punishments that do not exceed twelve months and the imposed for imprudent crimes.
c) Three years for the rest of the less severe punishments which does not exceed the three years.
d) Five years for the rest of the less severe punishments which are equal to or exceed the three years.
e) Five years for the grave punishments.
– Article 376:
The article 376 establishes two possible cases according to which the judges or courts may impose the punishment inferior or two degrees of that prescribed by the law for the crime committed. The article 376 says:
“Article 376.
In the cases prescribed by the articles 361 to 372, the judges and courts, motivating it in the sentence, may impose the punishment inferior in one or two degrees to the established by the law for the crime committed, whenever the subject has willingly abandoned his criminal activities and has actively collaborated with the authorities or their agents either for impeding the commission of the crime, or for obtaining decisive proofs to identify or capture other persons responsible or for impeding the activity or development of the organizations or associations of which he was a member or with which he has collaborated.
Likewise, in the cases prescribed by the articles 368 to 372, the judges and courts may impose the punishment inferior in one or two degrees to the culprit who, being addicted to drugs in the moment of commission of the facts, enough proves that he has ended with success a detoxication treatment, whenever the quantity of toxic drugs, narcotics or psycotropic substances is not of great importance or extreme gravity.”
The two scenarios are contemplated in two different paragraphs, being independent altogether.
In the first case, the judges and courts in order to be able to impose the punishment inferior in one or two degrees, the subject must have willingly abandoned his criminal activities and actively collaborated with the authorities or its agents either to impede the production of the crime, to obtain decisive proofs for identifying or arresting the culprits or to impede the development of the organizations or associations of which he was a member or with which he has collaborated. Does it ring a bell? Yes, it is similar to the attenuating factor of confession of the art. 21 CP, but, according to the generic norms of application of the punishments of the article 66 CP, the concurrence of an attenuating factor, in this case the attenuating factor of confession can at most provoke the application of the punishment in its inferior half. This means that, the legislator is encouraging the confession in the crimes of the Chapter III, probably because of, on the one hand, the complex criminal structures that they need, and on the other hand, the importance of the legal good protected by the norm, the public health. Moreover, the attenuating factor of confession has been shaped by legislator in the article 22 and in the article 376, essentially in the same way, the article 376 states that the subject must have “willingly abandoned his criminal activities”, what may be the same that, the culprit must confess the infringement to the authorities “before knowing that the criminal proceeding has been started against him”, like the article 22 states. To put it differently, in my opinion, to willingly abandon the criminal activities means to confess before a criminal proceeding starts against you, because once this criminal proceeding starts the cessation of the criminal activity is, in any case, a necessity due to the pressure upon the criminal exercised by the justice. Furthermore, the article 376 requires the active collaboration of the culprit with the authorities for clarifying the facts, something which in the practice is another requisite of the generic attenuating factor of confession of the article 22, since the doctrine has required that it has to be useful. The Spanish Supreme Court´s resolution number 8076/2024 says: “B) The jurisprudence of this Court has required as requisites of the attenuating factor of confession the following: firstly, that the subject confess to the authorities the commission of the criminal fact or his participation in it; secondly, that the confession has to be truthful, being excluded those cases in which is maintained an exculpatory version which later is revealed false altogether; and thirdly, that the confession has to take place before knowing that the criminal proceeding, understanding as suc the investigation initiated by the police, has begun against him, which has to be related with the utility of the confession. Thereby, all those cases in which the seeming confession takes place when there is no possibility of hiding the infringement for its imminent and inevitable discovery by the authority are excluded.”
Another important question is that, the culprit may be able to obtain an analogous attenuating factor of confession, when the requisites or the article 376 are not met, nor those of the article 22. Although, this is also important, the benefits for the culprit are not as good as those offered by the attenuating factor of confession of the article 376, because its application is going to follow the generic rules for applying a punishment of the article 66 CP. This excerpt from the Spanish National High Court´s sentence number 3271/2024 is interesting: “In the article 21.7ª CP is recognized the possibility of appreciating the attenuating factor for analogy when the fact is similar to the structure and characteristics of any of the five attenuating factors recognized by the article 21 CP, although this Chamber has specified, on the one hand, that the analogous attenuating factor cannot be applied when the basic requisites of the basic attenuating factor lack, because otherwise it would be established a criterion contrary to the law, and, on the other hand, that it cannot be demanded an absolute equivalence between the analogous attenuating factor and the basic attenuating factor, since it would make impossible the humanitarian and plausible purpose.
Developing these criterions this Chamber has considered as analogous attenuating factor of confession, the collaboration with the Justice when it has already initiated the investigation of the facts. Like the STS 143/2002, of 24 July, pointed out, being true that it is not possible to apply attenuating factors which does not fulfil the legal requirements, evading the legislator´s will, it is possible “…that the attenuating factor for analogy is grounded in the cooperation of the accused with the judicial authority after his detention for clarifying the investigated facts, revealing his will of helping to restore the legal order and offsetting the previous unlawful will committing the infringement (STS 6 March 1993)… In these cases the acts of collaboration by who is already detained and subject to a criminal proceeding, the integration of such behavior in a relationship of analogy with the attenuating factor of the article 21.4, requires a efficacious, serious and relevant cooperation…”.
In this context it has been recognized as analogous attenuating factor the late confession, in other words, the confession given once the investigation has been initiated. Thus, the STS 695/2016, of 28 June, has affirmed that the analogous attenuating factor “…is applicable in all those cases in which does not concur the chronological element required in the basic attenuating factor, but there is a collaborating action from the investigated which is a reflection of his assumption of responsibility and which facilitates the investigation of the facts in which he participated; being required, that the behavior of the investigated within the investigation -although belatedly- effectively favors the clarifying of the facts and those responsible of them, being denied when the shared facts are evident or already known by the investigators…” This Chamber has also specified that, when the confession takes place once the investigation has been initiated, it is necessary that it has to be a great act of collaboration (STS 1044/2002, of 7 June).”
In the second case of the article 376, “the judge and courts may impose the punishment inferior in one or two degrees to the culprit who, being addicted to drugs in the moment of commission of the facts, enough proves that he has ended with success a detoxication treatment, whenever the quantity of toxic drugs, narcotics or psycotropic substances is not of great importance or extreme gravity.” This implies that, the quantity of drug by which the subject is condemned, cannot exceed the threshold of great importance (art. 369 CP), nor of extreme importance (art. 370 CP).
– Article 377:
In the article 377 is established the criterion for determining the value of the drug object of the crime, and aspect which is going to be important for estimating the fines of the articles 368 and 372. The article 377 states:
“Article 377.
In order to determine the amount of the fines which have be imposed by application of the articles 368 to 372, the value of the drug object of the crime or of the goods seized shall be the final price of the product or, otherwise, the reward or benefit obtained by the culprit, or which he may have obtained.”
– Article 378:
The article 378 establishes the order which has to be followed when the accused pays for any of the crimes of the article 361 to 372. The article 378 says:
“Article 378.
The payments made by the convicted for one or various of the crimes to which are referred the article 361 to 372 shall be destined in the following order:
1º To repair and compensate for the harm caused.
2º To compensate the State for the expenses in which it has incurred as consequence of the criminal proceeding.
3º To the fine.
4º To the private´s or public accusation´s costs with the sentence imposes their payment.
5º To the rest of the proceeding costs, including those corresponding to the defense of the accused, without preference between the interested.”
Víctor López Camacho
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com