Drug Trafficking Crime: Legal and Procedural Aspects

Posted on Oct 13, 2024 in Law & Jurisprudence

Drug Trafficking Crime

Legal and Procedural Aspects

The procedural-criminal aspect of drug trafficking is crucial, generating extensive case law.

Basic Type (Art. 368 cp)

Those who cultivate, manufacture, traffic, promote, encourage, or facilitate the illicit use of toxic drugs, narcotics, or psychotropic substances, or possess them for such purposes, face imprisonment and fines.

  • Substances causing severe health damage: three to nine years imprisonment and a fine three times the drug’s value.
  • Other substances: one to three years imprisonment and a fine double the drug’s value.

Only substances listed in international conventions are considered drugs and can cause serious health damage. Examples include:

  • Substances causing serious health damage: heroin, cocaine, amphetamine derivatives (ecstasy, pills), LSD.
  • Substances not causing serious health damage: marijuana (weed, Mary) and hashish (cannabis resin, oil).

Objective Type

According to the World Health Organization, a drug is any natural or synthetic substance whose repeated consumption, in various doses, leads to:

  1. A desire or need to continue consumption (psychological dependence)
  2. A tendency to increase the dose (tolerance)
  3. Physical or organic dependence to avoid withdrawal symptoms

Since 1993, shared consumption is generally not considered a crime, as it doesn’t promote, encourage, or facilitate illegal consumption.

Subjective Type

Drug trafficking is an intentional crime, requiring the individual to intend to promote, encourage, or facilitate illegal consumption.

Attempted and Completed

The law considers drug trafficking a crime of early completion; the mere offer constitutes a crime, even if the offer isn’t accepted.

Ownership and Participation

Both the agent and the donor are considered authors. Complicity applies when cooperation isn’t necessary, such as indicating where to buy drugs or providing payment. Distinguishing between necessary cooperation and complicity can be challenging. Accompanying the vehicle transporting the substance is considered complicity, while overseeing the premises where drugs are sold is considered authorship.

Qualifications (Art. 369.1 cp)

Several circumstances aggravate the penalty:

  1. Victim-related: Supplying drugs to minors, mentally handicapped individuals, or those undergoing addiction treatment (369.1.5º).
  2. Subject-related: Offender belonging to an organization (369.1.2º) or being an authority, public official, social worker, teacher, or educator acting in their professional capacity (369.1.1º).
  3. Place-related: Introducing or distributing drugs in schools, military facilities, correctional facilities, or rehabilitation centers (369.1.8º), or performing such acts in public establishments by staff (369.1.4º).
  4. Material-related: Adulterating, manipulating, or mixing substances, increasing potential health damage (369.1.7º).
  5. Quantity-related (Art. 369.1.6º cp): Significant quantities are considered aggravating:
  • 300g heroin
  • 750g cocaine
  • 2.5kg hashish
  • 10kg marijuana
  • 240g ecstasy tablets

Special Skills (Art. 370 cp)

Further aggravating circumstances include:

  1. Using minors or mentally handicapped individuals to commit these crimes.
  2. Involvement of organization leaders, managers, or officers.
  3. Extremely serious behaviors, such as exceeding significant quantities, using vessels or aircraft for transport, simulating international trade operations, or involvement in internal drug trafficking networks.

In conclusion, all professional drug trafficking activities are punishable under this rule.