Drug Trafficking and Homicide under Spanish Law
Drug Trafficking
Basic Type
Those who carry out acts of growing, manufacturing, trafficking, or otherwise promote, encourage, or facilitate the illicit use of toxic drugs, narcotics, or psychotropic substances, or possess them with those purposes.
Objective Type
Drug substances, natural or synthetic, whose repeated consumption in various doses causes:
- Desire or need to continue use (psychological dependence)
- Tendency to increase the dose (tolerance)
- Physical or organic dependence to avoid withdrawal symptoms
Subjective Type
This is an intentional crime requiring the individual to intend to promote, encourage, or facilitate illegal consumption.
Attempted and Completed
The law defines this crime as one of early completion. The mere offer is considered a crime, even if the offered party does not accept.
Ownership and Participation
The agent and the donor are considered authors. Complicity is appreciated in cases of cooperation, such as indicating where to buy drugs or providing money to obtain them.
Qualifications
Article 369.1 of the Spanish Criminal Code (CP) defines several aggravating circumstances:
- Victim-related: Providing drugs to children under 18, mentally handicapped individuals, or people undergoing addiction treatment or rehabilitation.
- Subject-related: When the offender belongs to an organization or association, or is an authority figure, public official, social worker, teacher, or educator acting in their professional capacity.
- Place-related: Introducing or distributing drugs in schools, military units, correctional facilities, detoxification or rehabilitation centers, or nearby areas. Also, when acts are performed in public establishments by officers or employees thereof.
- Material-related: When substances are adulterated, manipulated, or mixed, increasing the potential health damage.
The quantity of the substance is important. A significant quantity of a pure substance is considered:
- 300g of heroin
- 750g of cocaine
- 2.5kg of hashish
- 10kg of marijuana
- 240g of ecstasy tablets
Homicide (Art. 138 CP)
Legally Protected Interest
Life
Criminal Legal Guardianship of Life
Begins at birth (according to the Supreme Court, upon breathing). Criminal acts against dependent life are classified as abortion or, at most, injuries to the fetus.
End of Criminal Protection
Ends with the actual death of the person.
Objective Type
- Material Object: A living person physically considered.
- Perpetrator: Any person, except for limitations in competition laws.
- Victim: Anyone, except in specific articles of the CP (e.g., killing the King, head of a foreign state, protected persons).
- Typical Behavior: To kill another person.
Causation
A causal link must exist between the act of killing and the death (crime of result).
Objective Imputation
The Supreme Court accepts the Theory of Objective Imputation, requiring:
- Objectively foreseeable lack of due diligence
- Creation of an illegal risk
- Risk falls within the scope of the infringed rule
Intentional Homicide (Dolo)
Art. 138 CP: Killing another person is punishable by 10 to 15 years imprisonment. Intent requires knowledge and willingness to kill.
Negligent Homicide
Art. 142 and 621 CP define negligent homicide. Recklessness requires:
- Action carried out without due diligence
- Breach of duty of care
- Action could lead to someone’s death
Felony Murder
Death resulting from a malicious injury without intent to kill is attributable to negligence (Art. 142 CP).
Justifications
- Self-defense (Art. 20.4 CP): Requires unlawful assault, rational need for the means used, and lack of sufficient provocation by the defender.
- Necessity (Art. 20.5 CP)
- Fulfillment of a duty or exercise of a right (Art. 20.7 CP)
- Consent of the victim: NOT a justification for killing, as life is not a disposable right.