EMCDDA Home
  • EN
Search

Country legal profiles

Select the profile you wish to read:

Select language of profile: EN  ES 

Country Profile - Spain

Development of legislation
Controlled substances
Drug use and possession
Trafficking and drug-related crime
Prosecution and practice
Prevention, care and treatment
Precursors
Money laundering and confiscation
New developments
Links
References

Development of Legislation

Within the legislative framework in the field of drugs in Spain, several texts have a relative importance.

The Organic Law 1/1992 of 21 February 1992, on the Protection of Citizens´Security, introduced provisions of administrative sanctions to punish the possession and use of drugs in public places. Before this act possession and use of drugs were not prohibited by Spanish law.

In 1993 the Law 19/1993 of 28 December, on measures to prevent money laundering, implemented the related European Directive 91/308/EEC and in 1995 the current Penal Code was passed, by the Organic Law 10/1995 of 23 November, and established the offences and penalties concerning drug trafficking, money laundering and precursors.

The same year on 11 December the so-called 'Law of the Fund' (Law 36\1995) was adopted, creating a common national fund of goods and money coming from drug trafficking and related offences which is used for prevention, treatment and rehabilitation measures and allows, as well, additional financial resources for law enforcement agencies and international co-operation.

The Law 3/1996 of 10 January established, in accordance with the Directive 92/109/EEC, administrative controls on precursors.

Finally, it is important to mention the Law 17/1967, of 8 April, implementing the UN Convention of 1961 on narcotic drugs, and the Royal Decree 2829/1977, of 6 October, implementing the UN Convention of 1971 on Psychotropic Substances.

Likewise, most of the Autonomous Communities that make up Spain have passed important drug related laws, applicable within their own geographical territory, that are also included in the database.

In the field of international co-operation, Spain participates in most of the international organisations that are devoted to counter the world drug problem, playing an active role in their projects and initiatives, and has signed bilateral agreements with third countries, especially in Latin America and Europe.

Controlled substances

Under Spanish law there is not a specific definition of narcotic drugs or psychotropic substances, nor specific lists or schedules where the controlled drugs are classified. Therefore, judicial authorities refer directly - for the interpretation and application of the laws in accordance with the art. 2 of the law 17/1967 and art. 1 of the Royal Decree 2829/1977 - to the schedules of narcotics drugs and psychotropic substances included, respectively, in the 1961 Single Convention on Narcotics Drugs and in the 1971 Convention on Psychotropic Substances.  They may also refer to several national regulations that, after the approval of these Conventions, have put under control other substances not controlled originally.  The Spanish Penal Code establishes that the penalties foreseen for drug trafficking should be applied taking into account the seriousness of the health hazard the substances might cause to drug users. For instance selling heroin or cocaine can attract heavier penalties than selling cannabis by reason of the different health risk. Also, the judge will take into account many other elements, including aggravating and mitigating circumstances, for fixing the penalty between limits established by law.

Drug use and possession

The law 17/1967 considered drug use and drug possession and possession illegal - but authorised for therapeutical reasons, among others – without imposing any punishment.

Drugs use and possession for personal use do not constitute a criminal offence under Spanish law.

Nevertheless, in 1992 the Organic Law 1/1992 of 21 February on the Protection of Citizens' Security, currently in force, considered drug consumption in public – as well as illicit possession, even if not intended for trafficking - as a serious order offence punishable by administrative sanctions [1]. Fines are the usual punishment ranging from €300 to €30 000. The law foresees that the execution of the fine can be suspended if the person freely attends an official drug treatment program, in accordance with the procedure regulated in the Royal Decree 1079/1993, of 2 July.

Trafficking and drug related crime

Due to its geographical position Spain is one of the countries of the European Union more targeted by the international traffic. In response to this the Spanish government has set up a prominent structure to face the problem. Therefore, recent years have seen the intensification of police forces through the establishment of new units specialised in the fight against drug trafficking - such as the 'UDYCO' (Unidad de Drogas y Crimen Organizado).

The main role of the Government Delegation for the National Plan on Drugs is the co-ordination, on the one hand, of all public activities carried out for the prevention of drug use and the treatment and rehabilitation of drug users and, on the other, of all anti drug trafficking activities carried out by law enforcement agencies.

Independent of the competences of other Judges and Courts in this field, the Audiencia Nacional is the court competent to judge all cases of drug trafficking and money laundering in, or related to, Spain when committed by organised groups and with effects in two or more provinces.

The law foresees heavy penalties (in line with the seriousness of the health damages associated to the drugs and the aggravating and mitigating circumstances that may exist), which appear to be in the range of the most severe in Europe reaching up to 20 years and 3 months in prison.

Articles 368 to 378 of the Penal Code regulate penalties for illicit drug and precursors trafficking, which are considered crimes against public health.

The penalties are more severe when the crime of illicit drug trafficking involves substances which might cause serious health risks, and when some special circumstances exist, such as: drugs are adulterated, big quantities of drugs are involved, drugs are sold to minors under 18, drugs are introduced into schools, prisons or military establishments, drugs are sold in public establishments by employees of the establishment or are offered to those undergoing drug treatment, etc [2].

When no aggravating or mitigating circumstances exist, those who committed the crime can be sentenced to prison for 1 to 3 years, if the drugs do not cause a serious health damage and from 3 to 9 years when they do. Also, in all cases, a fine is imposed and the drugs and goods used (cars, boats…) are seized as well as the revenues.

Figures available show law enforcement efforts against illicit drug traffic. In 1999, 89 994 persons have been arrested for traffic (8 359 more then the previous year) and seizures of heroin increased by 177% in 1999 in relation to '98, cocaine 57% and 1.6% more for cannabis [3]. In 2000, 485 kg of heroine were seized (1159 in the previous year), 6165 kg of cocaine (18111 in 1999) and 474505 kg of cannabis (435153 in 1999), with 17067 people arrested.

Prosecution and judicial practice

The Spanish legal system operates on the legality principle, which means that all legal actors (police, prosecutors and judges) are obliged to prosecute every crime they are aware of and apply the law accordingly, which means that there is very little space for discretional criteria.

Scenario 1: possession of heroin for personal use by an adult offender.

If the examining judge considers that the quantity of the drug apprehended (by the police) is exclusively for the personal use of the offender and that any involvement of this person in sale or trafficking can be excluded, he will most probably close the case taking no further action.

Scenario 2: property crime committed by a drug user to finance her/his drug addiction.

Normally a person who has committed a property crime (e.g. shoplifting) would be arrested by the police and detained. A report would be made and the person will be placed at the judge’s disposal. The judge, if there are no pending charges, no risk of disappearance, and no major social alarm is caused, will release the person until called to appear in court on a given date.

The judges or courts facing a property crime committed by a drug addict can declare the crime non punishable when those committing the crime were completely under the effects of the drugs or suffered from withdrawal at the time of the crime. In both cases the judge or court will order the person to attend a residential treatment. The judge or court can also apply, if the legal requisites concur, the mitigating circumstance of “strong drug addiction” (foreseen in art. 21.2ª of the Penal Code). In this case the penalty to be imposed for committing the property crime cannot exceed half of the maximum penalty foreseen in the law.

Moreover, in cases where the maximum penalty is equal or less than three years, its execution can be provisionally suspended and definitively reduced or dropped if the offender agrees voluntarily to undergo treatment, given that the offender will not leave the treatment or commit any crime in the time set (between 3 and 5 years). In any case when the maximum penalty is less than one year it can be substituted with weekend arrest and/or fines.

Stealing goods to the value of €100, if it involves violence or intimidation, would result in the person being detained and not released but rather put at the disposition of the judge. Burglary valued at €1000 would be considered a crime. The penalties will be a prison sentence between 2 and 5 years.

Scenario 3: small-scale distribution of drugs by a drug user to finance her/his drug addiction.

The Spanish legal system does not foresee any attenuating circumstances in case of small dealing or dealing as activity to finance one's own addiction. Penalties therefore will take into account the usual circumstances and the person will be charged with illicit sale of drugs.

Prevention, care and treatment

Spain is a parliamentary monarchy divided into 17 autonomous communities and two autonomous cities, which have legislative powers in specific domains.

The autonomous communities have therefore legislative and executive competences in the fields of health, hygiene and social assistance [4], into which fall some aspects related to drug prevention and the treatment and rehabilitation of drug users. In these cases the laws passed by the autonomous communities have necessarily to be taken into account, even though the national laws are also applicable (for example, regulations on advertising, on health, education…)

Drug addicts who have committed an offence may benefit from alternative measures to prison once the sentence against them has been pronounced [5]. However the conditions posed by the law heavily limit the recourse to alternative measures; the prison penalty can not exceed 3 years, with "adequate certification (…) that the convicted person has overcome his addiction or is undergoing treatment for this purpose at the time of the decision on suspension. That the convicted persons are not habitual offenders, (…) that the convicted person commits no further offence during the period appointed, which shall be from three to five years."

These people can benefit from unemployment grants and will be taken into account by the employment policies carried out by the government, in accordance with the law 36/1999 of 18 October.

Precursors

Articles 368 to 378 of the Penal Code, passed by the Organic Law 10/1995, regulate penalties for illicit drug and precursors trafficking, which are considered crimes against public health. Under Art 371, any person manufacturing, transporting, distributing, trading in or possessing precursor substances, knowing that they are to be used in the illicit cultivation, production or manufacture of toxic drugs, narcotics or psychotropic substances, or for these purposes, shall be punished by imprisonment for a term of from three to six years and a fine of three times the value of the goods or merchandise. Custodial sentences will be in the higher range if the organisation is involved in the chemical trade. The aggravating and mitigating circumstances applied to drug producers and traffickers, such as higher sentences for persons abusing positions of public responsibility, also apply to illegal precursor trafficking.

The Organic Law 3/1996 of 10 January, and the Royal Decree 865/1997, developing the Organic Law 3/1996, established administrative controls on precursors, in accordance with the Directive 92/109/EEC and the Regulation 3677/90/EEC.

Violations of these provisions are divided into three types of offences; major, serious, and minor. Major offences include, among others, refusing or giving inaccurate information upon requests of the competent authorities, dealing in chemicals without the necessary licence or registration, exporting scheduled substances without the necessary Licence or registration, or poor registration of import, export or transit operations. They are punishable by withdrawal or suspension of licence for 5-10 years and a fine of  €90 000 to €600 000. Serious offences include, among others, breaches of documentation and labelling requirements, breaking the obligations established by law in order to put in the market substances scheduled in category 1, or the absence of notification of suspicious operations. Serious offences will be punished by suspension of licence for up to five years and a fine of  €6 000 - €90 000. Minor offences cover all other breaches of law than those specified as major or serious, and will be punished by a fine of up to  €6 000.

All offences may be punished by confiscation of the chemicals and of any illicit gain obtained as a result of the commission of the offence. The Organic Law 3/1996 foresees that the product of the economic sanctions as well as the confiscated goods are assigned to the Fund from Confiscated Goods for offences related to drug trafficking and other related offences. Under Art 17 of the same law, the time limits for criminal prosecution are five years for major offences, two years for serious offences, and six months for minor offences.

The Government Delegation for the National Plan on Drugs (DGPNSD), of the Ministry of Interior, includes the Subdirectorate General of Management and Institutional Relations, which is the competent authority to monitor the intracomunitary trade of scheduled chemical substances, manages the General Registry of Precursors, responsible to grant the activity licences.

The Department of Customs and Excise, of the State Tax Agency, is the competent authority to monitor the external trade of scheduled chemical substances and manages the Special Registry of Precursors.

In 1999, the Agreement on Voluntary Co-operation on non scheduled chemical substances diversion was signed by the competent authorities (DGPNSD and Customs Department) and the industry (FEIQUE-Spanish Chemical Industry Federation).

Money laundering and confiscation

Drug related money laundering is punishable according to Organic Law No. 8 of 23/12/1992. The scope of the law includes credit and financial institutions but also companies and/or business activities that are likely to be used for money-laundering activities. Casinos and property companies are mentioned specifically. Identification is compulsory for new or occasional customers with a threshold of €16 000. In 1995, the law 36/1995 of 11 December was adopted, making it easier to dispose and reconvert assess and money from criminal activities into prevention treatment or law enforcement.

Links

The site www.mir.es/pnd/ contains a drugs law database including full text of national and regional Spanish legislation.

References

·         National Plan on Drugs, Reitox National Reports 1999 - 2000;

·         Study on the legislation and regulations on drug trafficking in the European Union Member States, European Commission 2001;

·         L'incrimination de l'usage de stupéfiants dans sept legislations européennes, Cesoni, Mars 2000, PNSD Memoria 93, Ministerio de Justicia e Interior, 1994 and Observatório español sobres drogas, Informe 1 1998, in Cesoni, Mars 2000;

·         Rosemary Barberet, in Prosecution of drug users in Europe: varying pathways to similar objectives, EMCDDA 2001;

·         Observatorio Español sobre Drogas: Informe nº 1, 3, 4

Footnotes

1. L'incrimination de l'usage de stupéfiants dans sept legislations européennes, Cesoni, Mars 2000 (back)
2. Rosemary Barberet, in Prosecution of drug users in Europe: varying pathways to similar objectives, EMCDDA 2001 (back)
3. Observatorio Español sobre Drogas: Informe nº 4  (back)
4. art.148.1. paragraphs 20º and 21º of the Constitution (back)
5. art. 87 Law nº10/1995, of 23 of November (back)

Page last updated: Monday, 19 March 2012