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Module I. European and national legislation
on international drug trafficking: general
Prof. Dr. Mrs. Cristina Méndez Rodríguez
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
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.
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.
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
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.
Promote, encourage or facilitate such consumption.
Possess in order to promote, encourage or facilitate such
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.
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.
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.
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.
III. Hyper-qualified type. Article 369 bis. Membership in a criminal organization.
Form of incorporation of membership to a criminal organization: Critical
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
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.
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.
IV. Hyper-qualified type. Article 370.
370.2: Heads, managers or officers of organizations contemplated in the
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.
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