Module I. European and national legislation
on international drug trafficking: general
framework
Prof. Dr. Mrs. Cristina M...
I. General considerations
I. In this module the provisions that deal with drug trafficking as a crime
committed by organiz...
II. European legislation
 European legislation is framed in the rules of United Nations
I. The Single Convention on Narco...
III. National legislation
I. Basic type. Article 368
 Material object of the crime: Normative element defined in the Inte...
Promote, encourage or facilitate such consumption.
Possess in order to promote, encourage or facilitate such
consumption...
 Consequences of the typical behavior:
Difficulty in differentiating the various stages of criminis iter:
preparatory ac...
 Penological distinction according to the harmfulness of the substance:
Substances that cause serious harm to health: fo...
II. Aggravated type. Art.369: Penalty superior in degree
 Article 369.1.5 ª Quantity of notorious importance: Agreement o...
 III. Hyper-qualified type. Article 369 bis. Membership in a criminal organization.
Form of incorporation of membership t...
 Problems of applying the penal type when criminal acts are committed
by persons belonging to a criminal organization.
T...
 IV. Hyper-qualified type. Article 370.
 370.2: Heads, managers or officers of organizations contemplated in the
article...
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MÓDULO I. PRESENTACIÓN

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MÓDULO I. PRESENTACIÓN

  1. 1. Module I. European and national legislation on international drug trafficking: general framework Prof. Dr. Mrs. Cristina Méndez Rodríguez Project JUST/2011/ISEC/DRUGS/AG/3671
  2. 2. I. General considerations I. In this module the provisions that deal with drug trafficking as a crime committed by organized crime and in its international dimension will be detailed, starting from the basic type of drug. II. The current Penal Code in an effort to take into account all possible ways the commission of these crimes by criminal organizations, introduced, along with a new type of aggravated drug trafficking offense that is based on the case that the guilty belongs to a criminal organization (art.369 bis), new criminal offenses of criminal organization (art.570 bis) and criminal group (art.570 ter) with the same basis, causing unnecessary problems of implementation of the rules and thus making it enormously difficult the effective fight against illicit drug trafficking. Project JUST/2011/ISEC/DRUGS/AG/3671
  3. 3. II. European legislation  European legislation is framed in the rules of United Nations I. The Single Convention on Narcotic Drugs of 1961 sets out the current guidelines of the criminal policy on drugs. II. The 1971 United Nations Convention on Psychotropic Substances (Vienna Convention), that included on the lists of the Single Convention the synthetic and hallucinogenic drugs. III. The 1988 Vienna Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Vienna Convention), which has focused on aspects related to the control of drug trafficking. European legislation:  The Framework Decision 2004/757/JHA of 25 October 2004 concerning the establishment of minimum provisions of the constitutive elements of criminal acts and penalties applicable to illicit drug trafficking. Project JUST/2011/ISEC/DRUGS/AG/3671
  4. 4. III. National legislation I. Basic type. Article 368  Material object of the crime: Normative element defined in the International United Nations Conventions signed by Spain.  Typical behavior: expansive tipe and with omni-comprehensive pretension. Common purpose to all the typical modalities: in order to favour the illegal consumption: Cases that are excluded: Legal or authorized consumption . Acts without the purpose of promoting the illegal consumption as the crop for their own consumption or for shared use. Possession for consumption. Acts of cultivation, processing or trafficking with the purpose of favoring the illegal consumption The concept of traffic. Requires no financial consideration. Acts of mobility, extent or spread of the substance including transportation or exchange and donation except some cases. Project JUST/2011/ISEC/DRUGS/AG/3671
  5. 5. Promote, encourage or facilitate such consumption. Possess in order to promote, encourage or facilitate such consumption The atypicity of possession for own consumption.  Asset legally protected and acceptance modality thereto: Legal asset: public health. The substance must be suitable in the abstract to harm individual health and generate risk of addiction. Typical structure: abstract danger crime. The substance must be appropriate in the particular case to affect health. The criterion of minimum psychoactive dose setting the National Institute of Toxicology is welcomed. If the amount is minimal, the substance is very unnatural or may not be accredited if it exceeds the minimum psychoactive dose: is inappropriate to affect health. Project JUST/2011/ISEC/DRUGS/AG/3671
  6. 6.  Consequences of the typical behavior: Difficulty in differentiating the various stages of criminis iter: preparatory acts, finished and unfinished attempt and consummation because the typical wording equates nuclear acts of cultivation, production or trafficking to promoting illegal consumption that does not require possession of the drug, but only their potential availability. The law applies only exceptionally the attempt, and in some cases, preparatory acts. Dissolution of the limits between authorship and the different forms of participation: a unitary or extensive concept of author is welcomed: authors are all the ones doing some causal contribution to the activity of the authors in the strict sense. Project JUST/2011/ISEC/DRUGS/AG/3671
  7. 7.  Penological distinction according to the harmfulness of the substance: Substances that cause serious harm to health: for imprisonment of three to six years and a fine of three times the value of the drug. Substances that do not cause serious harm to health: prison terms ranging from one to three years and a fine of up to double Criteria: harm, dependence, tolerance, withdrawal syndrome. Substances that cause serious harm to health, including: heroin, cocaine, speed, LSD, ecstasy or MDMA, MDA or love pill, the MDEA or eva, and methadone. Substances that do not cause serious injury, among others: cannabis and its derivatives (marijuana, hashish and grifa), rohypnol, and the tranxiliun Trankimazin. Project JUST/2011/ISEC/DRUGS/AG/3671
  8. 8. II. Aggravated type. Art.369: Penalty superior in degree  Article 369.1.5 ª Quantity of notorious importance: Agreement of the Plenary non Jurisdictional of the Supreme Court of October 19, 2001: The amount is determined from the 500 doses related to the daily consumption by the National Institute of Toxicology, taking into account the substance reduced to purity, except cannabis and its derivatives.  Article 369.2: When the guilty «takes part in other activities organized or whose implementation is facilitated by the offense» it does not have to be a criminal organization, it is not necessary to be related to drug trafficking activities, they could even be licit, and no membership is required, being sufficient the mere participation. Project JUST/2011/ISEC/DRUGS/AG/3671
  9. 9.  III. Hyper-qualified type. Article 369 bis. Membership in a criminal organization. Form of incorporation of membership to a criminal organization: Critical valuation.  Legal grounds of the aggravating factor: greater capacity for aggression to the legal asset public health  Concept of criminal organization: Criminal organization of the article 570 bis.  Composed of at least three people.  Realization of the events described in Article 368.  Stable or indefinite character.  That there is a concerted and coordinated distribution of tasks or functions in order to commit crimes.  It is not such the criminal group referred to in the article 570 ter.  Membership of the organization, which exclude collaboration with it.  That the crime is committed as an activity of the organization. Project JUST/2011/ISEC/DRUGS/AG/3671
  10. 10.  Problems of applying the penal type when criminal acts are committed by persons belonging to a criminal organization. Therefore this article 369 bis, as Article 570 bis (criminal organization) adjacent to Article 368 or 369 are applicable. According to the principle of alternativity, it must be applied the crime that contemplates the most severe penalty. Difficulty of determining the most severe penalty because article 369 bis establishes two criminal frameworks according to the harmfulness of the substance. On the other hand, the article 570 distinguishes penalties in accordance to the role played in the organization, according to the purpose of the organization to commit serious crimes or not, and depending on a number of subtypes aggravated based on several circumstances. Project JUST/2011/ISEC/DRUGS/AG/3671
  11. 11.  IV. Hyper-qualified type. Article 370.  370.2: Heads, managers or officers of organizations contemplated in the article 369.1.2ª  370.3. Extreme gravity That the amount considerably exceeds the one considered of notorious importance: which exceeds the result of multiplying per thousand the amount accepted as of notorious importance. Use of ships, vessels or aircrafts of specific transport: the means which amplify the dimension of this crime. international networks dedicated to this type of activity: involvement of organized groups specifically oriented at the commission of these crimes and endowed with international projection, that is, with a structure rooted in international geographical areas, able to plan and develop the different phases of development of the crime on the territory of more than one state. Project JUST/2011/ISEC/DRUGS/AG/3671

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