Drug Trafficking Under Spanish Penal Code: Analysis and Case Studies
PEC 6
Theory:
1. Explain what is meant by ‘psychoactive‘ and why the case of TS links this concept with the nature of the legal injury.
“Psychoactive” chemical substance, natural or synthetic, which specifically affects the functions of the central nervous system (brain and spinal cord) of living organisms, being able to inhibit pain, mood change or alter perceptions, ie , this substance can damage and even affect the legally protected, “public health“, to exceed the risk threshold described in the type.
To mix a criterion on the“Traffic” of these substances reach higher levels of legal certainty, the 2nd Chamber of TS, based on a report by the Institute of Toxicology (13-01-2004), about minimum quantities “psychoactive” of each substance, fixed, since the practical perspective, definitely the amounts in each substance, have the capacity to influence “psychoactive” in the subject (numbers from which any act of “traffic“ would exceed the risk threshold described in the type, making it punishable ), identifying the legally protected fully with this concept (STS 5/12/2003 and 19-01-2004).
2. Undertake a scheme setting out the arrangements of the type of aggravated drug trafficking
Reason for active subject: Belonging to any organization or association to disseminate these substances (Article 369.1.2 ° CP); participate in other organized crime or whose implementation is provided by the previous (Article 369.1.3 ° CP); Being authority, voluntary, official, social worker, teacher or educator (Article 369.1.1 ° and 372 PA), and direct or manage the organizations referred to above (Article 370.2 PC).
Ratio of taxable person or substances used to facilitate the crime to children, handicapped or subjects in addiction (Article 369.1.5 ° and 370.1 ° CP).
Reason for substance:
If the amount of obvious importance tapped out (Article 369.1.3 ° CP) of extreme gravity (Article 370.3 PC) or this adulterated(Article 369.1.7 ° CP).
Reason for place and means used: schools, military, prison and vicinity, and premises or premises open to the public (Article 369.1.4 and 8th PA); For international traffic (Article 369.1.10 º CP ) and use of violence or display or use weapons (Article 369.1.9 ° CP). Other legal consequences:
measures against legal persons referred to in Article 369.1.1, 2nd and 3rd PC.
3. Expose the criminal legal system of repentance in the area of crimes related to trafficking of toxic drugs, psychotropic substances and narcotics.
CP Article 376, as amended by the LO 15/2003 of 25 November, foresees the possibility of imposingpenalty lower by one or two degrees, in the cases provided for in Articles 368 to 372 CP, when “the subject has voluntarily abandoned his criminal activities and has worked actively with the authorities or their agents or to prevent the production of the crime, to obtain decisive evidence for the identification or capture of other users, or to prohibit the activities or the development of organizations and associations to which they belonged or with which it has worked. “ Therefore deleted two of the behaviors required as the basis of attenuation: the “submission to the authorities” and the “confession of the facts” in which he had participated, but is rewarded, not so much himself repentance or confession “but the” practical effect “collaboration involving asset in the fight against crime, emphasizing the effectiveness of “active collaboration or external to the subject.
4. È What is a ‘precursor’ criminal and what relevance can it have?
The “precursors” in our legal system are the “equipment, materials or substances listed in Table I and Table II of the United Nations Convention, done at Vienna on 20 December 1988 on illicit traffic in narcotic drugs and psychotropic substances and any other products added to that Convention or to be included in other future agreements of a similar nature, ratified by Spain, knowing to be used in the cultivation, illicit production or manufacture of toxic drugs, narcotics or substances psychotropic, or for these purposes “. Article 371.1 PC collects doctrinally actions are called “trafficking in precursors or behavior of precursors to be illegal, are punished with” imprisonment for three to six years and fine of three times the value of the goods or effects who manufactures, transports, distributes, trades or holds “those precursors. This provision creates “the punishment of preparatory acts preparatory acts” (Joshi Jubert).
Studies:
a) John is admitted to prison for a crime of assault. As it is a cocaine user and knows his wife Mary, who should enjoy building a vis a visMaria hidden in the bag of clothes he wants to give John a package containing 10 grams of cocaine with a purity of 45%. The drug however does not reach the hands of John because in the register prior to accessing the penitentiary prison officials identify the package, are seized of it and stop Mary.
Mary’s behavior certainly facilitates the use of toxic drugs, in relation to a drug that causes serious damage to health (cocaine). It should, however, dwell on three questions:
– First, Mary tries to get cocaine to her husband, who is a consumer and as an intern in a prison. In cases like (provided that no profit)
case law has excused the punishment, since he is addicted to donate to avoid a withdrawal syndrome does not fit into the framework of a crime against public health … But it’s for an important requirement that is absent in this case: That the substance in question is intended for direct consumption of the subject, without giving rise to the existence of surpluses that can be transmitted back or gift to others. And the problem is that this assumption is not easy to assume that Juan will be consumed immediately and once four and a half grams of pure substance (unless you want to die of acute intoxication, let, suffer from an ‘overdose’). So we do get to John, this quantity of drugs would leave us out of the cases in which, exceptionally, the Supreme Court supports the atypicality of the donation (the case law is much more restrictive for grants for subsistence holdings: this amount, if found in possession of John, might reasonably be seen for their own consumption if no evidence of trafficking, since it is what could consume in a few days and therefore unusual tenure would understand, but when the Dona Maria, not exclude the criminality if the amount involved exceeds consumption).
– Moreover, it is certain that the drug does not reach its destination. Does not take place any kind of ‘traffic’ (or by price or no price, or commercial sense, or the conveying of the term) when they come to have or offer or delivery. But we should not forget that the provision of Article 368 of the Penal Code expressly includes possession ‘with those purposes’, and Mary had to give to John, so that if we excluded the atypicality of this grant must also affirm the common features of possession to make it. So although Mary has been arrested prior to delivery this is without prejudice (in terms of current legislation, though it may be highly questionable from the principle of proportionality) that his conduct is punishable as offense.
– Finally, Mary tries to introduce the drug in a prison. This might suggest the implementation of the circumstances envisaged in Article369.1.8 ícula meetings, with the result of applying the higher penalty, but this aggravation applies in cases where there is a danger of the spread of consumption within the center, which supports arguments that always believed that the drug was actually addressed to the exclusive use of John, and certainly where as in this case has not been reached with the center. Although the reform of point in question now supports also the punishment for aggravated when such behavior occurs ‘near’ the center, this proximity can not be separated from the danger of spread inside, so jurisprudence remains that when the drug has been intercepted in the access-control as in this case, and especially in cases where prisoners had been destined for family rejects the use of modality and punishes aggravated by the basic type (think that the difference , the imposition of minimum sentences, three years would go to nine years imprisonment and a d… ía drug for trying unsuccessfully to get a family, and certainly that as this argument is not a ‘technical’ are sometimes used, with varying degrees of plausibility (and having noted the above, see eg the Case the Second Chamber of the Supreme Court of 2 October 2007), to question the adequacy of attempted entry into the prison to justify the derogation of the qualified rate).
Ultimately as the proposed solution (it being understood that the key is to argue effectively on the preceding three points rather than match or not the final solution) is as punishment for an offense of drug trafficking in Article 368 of the penal code, first paragraph, considering the circumstances and intent of Mary would be reasonable (in exercise of the power conferred by Article 66.1.6 of the Criminal Code rd) go to the minimum sentence (which it is still very high): three years imprisonment and fine of the value of the drug (which, in the absence of other data, fix-section 377 – according to the estimate of average prices to the effect biannually publishes the National Police).
b) Michael came down the street to James and gives ‘a stone’; Jaime asks how much it will cost and Miguel responds to 15 euros. Then police identified as James is, and made the arrest, searching Miguel. Miguel was wearing only a matchbox inside which was a piece that is analyzed to be cocaine, weighing a total of 2 g and a purity of 2% (ie a total of 0.04 grams of pure substance ).
Jaime Miguel offers a price (in the appropriate jargon, but in a little misleading: if there was any doubt of what he meant by ‘a stone’, the only thing in his power seems busy discrediting it) a toxic substance. So far, the behavior could be described by way of Article 368 of the Penal Code and would not preclude the failure to come to perfect the sale because the typical framework of Article 368 and supports the punishment for the completed crime from the moment that has to smuggle drugs to her.
But the problem is that the ‘drug’ that has in this case which is cocaine, toxic classified in the Supreme Court’s decision to cause serious damage to health, is trivial. Come on, that the ‘stone’ weighs two grams, but they are only 40 milligrams of cocaine … And according to the figures assumed by the Supreme Court (and those reported in the module) cocaine is harmless if the dose not enough for at least 50 milligrams.
In this case, we are below the minimum dose of abuse, and therefore neither has Michael really ‘drug’ or sell ‘drugs’. Unless we understand that offered a ‘stone’ was different from that (which is not impossible, but unlikely at least if we have other evidence), Miguel sold a substance, the amount of active ingredient was safe for the body, unable affect public health and atypical as a possible drug trafficking.
Come on, which can not be other punishment, “if anyone understood from the deception and argues quite properly, assuming that Michael knew that the drug could not psychoactive-effectiveness thresholds that a possible lack of scam attempts to offer as a drug that excipient was really only … Public health offenses can not be.
c) Luis habitually engage in selling heroin in the living room of his home as the police have checked on a continuous surveillance operation, which could also verify that his wife Laura is normally at home, and opens the portal to any person who requests the entry provided that ask for Luis, showing the way to the room without asking anything or take further action. Police searched the home should, seizing two packages with a total weight of 4 kilos were analyzed conveniently be heroin with a purity of 50%.
The conduct of Louis is undoubtedly constitute the offense of trafic of drugs that cause serious damage to health (though ever been punished for the crime continued in cases of this nature, the Supreme Court is reluctant to apply this figure in the crime in question, and has argued it would be ‘a misnomer talk about an ongoing crime of drug trafficking, since the description of the typical unfair encompasses all acts or activities related to nuclear activities referred to in Art. 368 in a single crime as standard and it uses the plural notwithstanding that in determining the sentence to take into consideration the acts of trafficking or time who is dedicated to traffic the accused ‘(Decision of the Second Chamber of the Supreme Court of 13 March 2007), that yes, the habitual taken into account when determining the actual sentence). For others, the quantity of drugs intercepted (two kilos of pure substance, heroin) puts us well above the threshold of remarkable significance (the Supreme Court being estimated from 300 grams of heroIna pure), which permits application of the aggravation in article
369.1.6 meetings and with it the imprisonment of 9 years and a day to 13 years and 6 months and fine of four times the value of the drug (which, the absence of other data, fix-section 377 – according to the estimate of average prices to the effect biannually publishes the National Police). We could impose eg sentences of 11 years in prison and a fine of three times the value of the drug.
As for Laura, the fact is that the course does not tell us what he did know her husband, nor I had ever seen drugs, or had any awareness or participation in traffic … But it consistently crossed the access buyers and walked toward her husband. And here is where they open different possibilities for qualification regardless of the exercise not so much the end result as the arguments used:
– If we believe that he knew nothing and thought her husband had other business or simply be forced to acquit her many friends freely;
– Assuming that I knew what it was all about, and he did not like someone who learns to not openly involved (in short: it was less painful when possible, because even if conscious recklessness would not be punishable), we ascribe responsibility, but what? The wording of course makes it very difficult to attribute to Laura knowledge of the quantity of drugs possessed by Luis; not seem prudent, in line of principle, assume that fraud is extended to the perceived importance … But it may be easier to assume-if we start who was aware of being trafficked in drugs, “that Laura was aware that drug trafficking related to causing serious damage to health. Moreover, the open structure of the typical wording of Article 368 of the Criminal Code makes almost any involvement as a responsibility to punish, but in cases of purely ancillary activities without direct contact with the drug or the price the Supreme Court has been coming to the complicity … It would be a reasonable solution to understand that Laura always knew she opened the door to drug buyers. The resulting imprisonment in this way, always starting from the basic rate (not the obvious importance) would be between one year and six months to three years less one day …