Drug Trafficking: Legal Aspects and Criminal Liability
Drug Trafficking as a Crime Against Public Health
Drug trafficking is a crime under article 368, classified as a crime against public health within collective security offenses. It encompasses any act of drug cultivation, production, trafficking, or actions that promote, encourage, or facilitate the illicit use of toxic drugs, narcotics, or psychotropic substances, or possession with those purposes.
Key Elements of Drug Trafficking
Objective Element
This involves toxic drugs, narcotics, or psychotropic substances, whether natural or synthetic. Their consumption leads to repeated doses, an overwhelming desire to continue use, increased dosage, and physical dependence, necessitating continued use to avoid withdrawal symptoms. The core behaviors include growing, manufacturing, trafficking, or any actions promoting illegal consumption.
Subjective Element
Intent must cover the object and harmfulness of the drugs. It can be inferred from concealment, exculpatory versions, or lack of a reasonable explanation for possession. Eventual intent exists when carrying substances without verifying their nature and weight. Awareness of the substance’s adverse health effects and the intent to promote illicit use by third parties are required. Promoting internal consumption constitutes fraud.
Guilt and Possible Defenses
Possible Defenses: An insurmountable fear, proven by acting under psychological impact according to average-person criteria (e.g., threats to family), can serve as a defense.
Ownership and Participation
Authorship: Extends to any act of favoritism, regardless of participation level, including contributions to the criminal act (e.g., preparing materials, delivering, giving instructions, controlling proceeds). Sharing the substance implies authorship. Providing a vehicle for trafficking or driving it, cooperating, and monitoring from outside can constitute co-authorship.
Complicity: Requires:
- Existence of an author
- Accomplice’s knowledge of the drug’s existence
- Behavior subject to copyright
- Non-essential contribution
- Easily replaceable contribution
- Sporadic contribution
Modifying Circumstances
Mitigating Circumstances
- Drug Addiction: Can range from influencing punishment to complete cancellation of the charge, if it’s a significant trigger for the crime.
- Repairing the Damage: Difficult to appreciate due to the offense’s nature and inapplicability when admitting discoverable facts.
- Kinship: Can mitigate, though challenging to define, but not aggravate as the legally protected good is collective, not individual.
Aggravating Circumstances
- Recidivism: Applies to any trafficking form, regardless of the substance.
Concurrence of Crimes
Drug trafficking laws can absorb smuggling offenses. More severe sanctions apply to greater trafficking offenses. Real concurrence can occur with homicide, injury, receiving stolen property, and illegal possession of weapons.