Drug abuse is considered to be ‘the chronic or habitual use of any chemical substance to alter states of body or mind for other than medically warranted purposes’.
Drugs are defined in the 1961 Single Convention on Narcotic Drugs, New York, August 8, 1975 (an international agreement for the prohibition of production and supply of drugs) as being substances which used improperly can lead to addiction.
It has since been supplemented to include Psychotropic Substances (drugs that affect the mind and can be used to treat psychiatric disorders) such as LSD, Ecstasy and other psychoactive drugs.
The Spanish Law 17/1967 of 8 April adapts the provisions of the convention by considering prohibited drugs or genres as those including Cocaine, Heroin, Methadone, Opium, Morphine and Cannabis (hashish, hashish oil and marijuana). The United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (BOE no. 270/1990 of 10 November 1990) adds provisions regarding money laundering and drug related offenses.
The Spanish Criminal Code (Chapter III, Title XVII of the Second Book) amended by the Constitutional Law 10/1995 regulates Public Health offences and includes toxic, narcotic or psychotropic substances. This law also covers manufacturing, dealing, possession and drug trafficking. Maximum sentences differ according to the nature of the offence for example, less for possession and more for production, trafficking, or for allowing premises to be used for producing or supplying drugs, also penalties vary for crimes related to hard or soft drugs. Prosecutors can prove your intent to distribute drugs just by the quantity of the drug, without any evidence that you actually distributed the drug. Imprisonment continues to play an important part in the crime policy of Spanish system. The maximum prison term for hard drugs is 20 years, and up to six years and nine months for soft drugs. In both cases fines can be up to six times the value of the substance.
These drug-related crimes are considered to be dangerous to public health, but the mere presence of a restricted drug does not necessarily constitute a crime if not accompanied by a certain risk which is regulated by the Criminal Code. The sentence from the Supreme Court in case 298/2004 of the 12th March, states that there must be minimum qualitative and quantitative amounts of the substances, and the sentence in the case 1889/2000 states that the quantity is insignificant if it fails to have any harmful effects to health.
A report by The National Toxicology Institute, from December 2003 which was requested by the non-jurisdictional Supreme Court of 24th January 2003 lists the minimum doses for six psychoactive substances which are considered a crime. According to the Plenary Agreement of Court II of the Supreme Court of 19th November 2001, the aggravating circumstances for large quantities of drugs are determined in article 369.3 of the penal code referring to the report from the National Institute of Toxicology of 18th October 2001, as being from 500 daily doses of each drug. These are exclusively base substances except for cannabis and its derivatives. However in Case 413/2007 of 9th May, a margin of error of 5% for the analysis of substances regarding weighing and purity was established, the judge or court can make the final decision as to the seriousness of the crime.
Articles 359 to 378 of the Spanish Criminal Code cover the laws regarding drug related offences. Articles 359 and 360 relate to the manufacture, supplying and trafficking of harmful substances, it states that the punishment for this ranges from a prison sentence from six months to three years and a fine of from six to twelve months, plus a special disqualification for trading for a period of between six months and two years. The Criminal code also covers the lure, conspiracy and enticement to commit the crimes as defined in articles 368-372.
There is a reversal of the burden of proof, in cases where suspects are found in possession of a quantity of drugs greater than that required for personal use. In these cases it will be up to the defendant to prove there was no intent to supply.
It is illegal to distribute any drugs and the penalty is higher if the drugs have been tampered with or where they can endanger life or the health of people. Manufacturing, growing or dealing with drugs can carry long prison sentences and these will be increased if there is a significant amount of the drug. Aggravating circumstances will also increase the prison term and/or the fine, and these circumstances are for example by providing drugs to children under 18, using under 16 year-olds to commit the crime, when the amount of drugs is remarkably large or when the drugs are adulterated in any way to make them more harmful. The transfer and acquisition of property derived from drug related crimes and money laundering along with the manufacture, transport and distribution of precursors, which are substances used in the culture and manufacture of drugs, are also punished with prison terms and fines. Anyone who uses their professional position for drug trafficking will not only receive the punishment according to the crime, but also be liable to the disqualification from that post and any vehicles used in transportation, or property that has been used in money laundering, can be seized along with the drug.
If convicted by judges or foreign courts for similar crimes as those mentioned in articles 368 to 372 of the Spanish Criminal Code, then these will count as being repeated crimes unless the criminal record has be cancelled. A judge or court can also reduce the penalty if the criminal confesses to the crime, agrees to collaborate with the authorities to prevent further crimes or offers information regarding the identification of other criminals.