Offences against public health, the category Spanish law uses for drug trafficking, are among the most heavily prosecuted in the country, and they reach far beyond large-scale operations. Carrying, holding, growing, transporting or passing on controlled substances can all fall within article 368 of the Criminal Code. The penalties range from relatively short prison terms to very long ones, depending above all on the type of substance, the quantity and whether any aggravating factor applies. If you are under investigation, the early decisions in the case usually matter most.
Fukuro Legal defends individuals and companies in drug-related proceedings before courts across Spain. Below is an overview of how the offence is structured and where a defence usually focuses.
How Spanish law treats drug offences
The Criminal Code draws a basic distinction between substances that cause serious harm to health and those that do not, with significantly higher penalties for the first group. The conduct covered is broad: it includes growing, producing, trafficking, promoting, facilitating consumption by others, and possession with that purpose. Possession for one's own consumption is not a criminal offence, although it can lead to an administrative penalty, which is why the line between personal use and intent to traffic is often the central issue in a case.
Penalties and aggravating factors
Beyond the base offence in article 368, the Criminal Code sets out aggravated forms in articles 369 and following that increase the penalty substantially. The most common are:
- Notably large quantities of the substance.
- Distribution to minors, to people in treatment, or in places such as schools or prisons.
- Acting as part of an organisation or being in a position of responsibility within it.
- Use of violence, weapons, or adulteration that increases the harm.
- Trafficking carried out by public officials or professionals abusing their position.
There are also so-called hyper-aggravated forms for extreme cases, and specific provisions on the seizure and confiscation (decomiso) of the proceeds and instruments of the offence. Because the figures move so sharply with each factor, an accurate early assessment of the charge actually being pursued is essential.
Where a defence usually focuses
A serious defence in a drug case is rarely about a single argument. Common lines of work include:
- The lawfulness of the search, the stop, the intervention of communications or the entry into premises, and whether the evidence was obtained with full respect for fundamental rights.
- The chain of custody and the analysis of the substance, including its weight and purity, which directly affect the penalty.
- Whether the facts show possession for personal use or an intent to traffic.
- The degree of participation, distinguishing the organiser from someone with a minor or peripheral role.
- Mitigating circumstances, including drug addiction where it is relevant, and, where appropriate, negotiating a conformidad that reflects the real situation.
Acting from the first hours, ideally during the police detention, often shapes everything that follows: the first statement, the contesting of evidence, and whether provisional detention is imposed. You can read more about your position in those first hours in our guide to your rights when arrested in Spain.
Talk to Fukuro Legal
Fukuro Legal works exclusively in criminal defence, with offices in Madrid, Palma de Mallorca, Malaga and Alicante and a 24-hour line for detentions, in English, Spanish and German. If you or a family member is being investigated for a drug-related offence, see our work on offences against public health and our criminal defence services, or contact us as soon as possible. If you are abroad, our overview for international clients is here: criminal lawyer in Spain.
