Drug Trafficking Offence (Art. 368 CP Spain): Types, Mitigating Circumstances and Case Law (2026)

The Drug Trafficking Offence: Art. 368 of the Criminal Code

Article 368 of the Código Penal (Spanish Criminal Code, "CP") defines the offence of drug trafficking: "Those who carry out acts of cultivation, production or trafficking, or who otherwise promote, favour or facilitate the illegal consumption of toxic drugs, narcotics or psychotropic substances, or who possess them for those purposes, shall be punished with imprisonment of three to six years and a fine of one to three times the value of the drugs involved in the offence if the substances or products cause serious harm to health, and with imprisonment of one to three years and a fine of one to two times their value in all other cases."

Drug Classification: Serious Harm vs. Non-Serious Harm

The CP distinguishes two categories:

• Serious harm to health: heroin, cocaine, LSD, amphetamines, methamphetamine, MDMA, fentanyl → sentence of 3–6 years + fine of up to three times the value
• Non-serious harm: cannabis, hashish → sentence of 1–3 years + fine of up to twice the value

The classification is a matter of law (established in circulars issued by the Fiscalía ( Public Prosecutor's Office ) and the doctrine of the Tribunal Supremo (Supreme Court, "TS"): SSTS (Supreme Court Judgments) of 9 November 2016). Where a mixture of substances is involved, the criterion of the predominant drug applies.

The Core Conduct: "Possession with Intent to Supply"

The offence under Art. 368 CP covers possession with intent to supply, not all possession. The case law of the TS (STS 632/2019, 3 December) has developed criteria for inferring an intent to supply:

• Quantity exceeding the minimum psychoactive dose for immediate personal use
• Variety of substances (consistent with a dealer's profile, not a user's)
• Division into individual wraps/packets (indicative of distribution)
• Cash + multiple phones + cutting agents (drug paraphernalia)
• Location at a known dealing spot or a place frequented by users

Mere possession of a modest quantity without any of those indicators does not constitute a criminal offence (it is an administrative infraction under Ley Orgánica 4/2015 de Seguridad Ciudadana; Organic Law 4/2015 on Public Safety).

Aggravated Offences (Arts. 369 and 369 bis CP)

Art. 369 CP: Aggravated Offences (Enhanced Penalty)

The sentences under Art. 368 are applied in their upper half (or at the next higher degree if two or more aggravating circumstances are present) when:

1. The offender is a public official or an employee of a healthcare establishment
2. Minors under 18 or persons with modified legal capacity are used
3. The offender is a leader, manager or person in charge of an establishment used for dealing (Art. 369.1.3ª)
4. The quantities are of notable importance (the TS has set the thresholds for each drug type in Non-Jurisdictional Plenary Agreements of 1997, 2003 and 2015)
5. The offence is committed in prison establishments, detoxification centres, youth centres or places frequented by minors
6. Drugs are supplied through violence or intimidation

Art. 369 bis CP: Criminal Organisations

Membership of a criminal organisation or group engaged in drug trafficking: a sentence of 9–12 years (hard drugs) or 4–6 years (cannabis) for leaders/managers; 6–9 / 3–4.5 years for members.

Shared Personal Consumption: Non-Criminal Conduct

Shared personal consumption (also known as joint consumption) refers to conduct whereby a small group of people share drugs for their own personal use, with no intention to supply. The TS (Non-Jurisdictional Plenary of 5 February 2015, confirmed by STS 492/2015) considers this conduct non-criminal when the following conditions are all met:

1. The consumers are adults who know each other
2. Consumption is immediate at the point of transfer
3. The quantity is small (consistent with personal use)
4. No payment is involved

If any of these conditions is not met, criminal liability may still arise.

Minimum Psychoactive Dose

The TS has established that possession of a quantity below the minimum psychoactive dose does not constitute a criminal offence, on the grounds that the harm caused is negligible. The thresholds set by the Non-Jurisdictional Plenary are:

• Cocaine: 50 mg (pure base)
• Heroin: 5 mg
• Cannabis/THC: 10 mg
• MDMA: 20 mg

These thresholds refer to the pure active compound, not to the gross mixture seized.

Drug Dependency as a Mitigating Factor (Art. 21.2 CP)

Drug addiction may constitute a specially qualifying mitigating circumstance (Art. 21.2 CP) if:

1. Drug dependency is established (through a forensic medical report or clinical documentation)
2. The offence is committed as a result of the addiction (causal link)

Effect: when recognised as a specially qualifying mitigating circumstance, the sentence may be reduced by one or two degrees (Art. 66.1.2ª CP). Addiction alone, without a causal link to the offence, is only an ordinary mitigating circumstance.

Exemption from criminal liability (Art. 20.2 CP): in extreme cases of withdrawal syndrome that completely eliminates volitional capacity (rarely applied in practice).

Ancillary Consequences (Art. 374 CP)

Drug trafficking offences carry mandatory forfeiture of the drugs, money, proceeds and instruments of the offence. Forfeiture of assets derived from the offence, or of assets of equivalent value, may also be ordered (value-based confiscation: Art. 127 bis CP).

Conclusion

Drug trafficking under Art. 368 CP is one of the most frequently prosecuted offences in the Spanish criminal courts. The dividing line between possession for personal use (not a criminal offence) and possession with intent to supply is the most critical issue a defence lawyer must analyse. The quantity of drugs, their division into individual doses and the absence of other indicators are the key factors.

Lexiel enables you to search TS case law on drug trafficking, shared personal consumption and minimum psychoactive doses, with verified citations.