ENCOD BULLETIN ON DRUG POLICIES IN EUROPE
NR 75 MAY 2011
THE SPANISH CRIMINAL CODE REFORM
In June 2010, a new Criminal Code was created in Spain, replacing regulations that had been in place for nearly 30 years.
Under the new Code, consumption and possession of drugs in public places are no longer penalized but sanctioned by administrative rules (Law to protect public safety of 21 February 1992 ). There is a possibility to forgo this penalty by enrollment in an addiction treatment program.
What is still prohibited is illegal trafficking, namely, according to article 368 of the Penal Code, those who “engage in acts of cultivation, production or traffic, or otherwise promote, encourage or facilitate consumption of illegal toxic drugs, will be prosecuted”.
The punishment provided for such acts has been repeatedly denounced by lawyers due to the disproportionality in the penalties, that can range between 1 and 20 years. The distinction between possession for personal] use or possession for trafficking is often very imprecise. Consumers often run the risk of being involved in criminal proceedings, or being sentenced. Another consequence of the current regulation of drug-trafficking offenses is the fact that Spanish prisons are full of people who belong to the lowest level of the mafia networks: mules (drug-carriers, especially from Latin America) and retail drug dealers (addicts or people who belong to socially excluded environments).
Article 368 establishes the punishment behavior and the basic sentencing.
a) Imprisonment of 1 to 3 years and a fine of up to twice the value of the drug, for small amounts of substances that cause no serious damage to health, such as hashish or marijuana. (Article 368 PC).
b) Imprisonment from 3 to 6 years and a fine of three times the value of the drug, in the case of small amounts of substances that cause serious damage to health, such as heroin, cocaine, crack, etc.. (This is the penalty for which there has been a reduction, from a maximum of 9 to 6 years). (Article 368 PC).
Federación Enlace produced some reform proposals from the viewpoint of criminal law and the principle of social inclusion. One of our proposals was related to the regulation of drug trafficking crime, demanding a more accurate and proportionate regulation of this matter.
We must say that most of our proposals have not been accepted in the final draft, since the reform has continued down the line starting more than a decade ago, characterized by its punitive tendency, going ahead with the idea of neutralizing the criminal as a primary purpose of penalty and penal populism, among others.
The new Code has tightened the punishment for certain offenses, creating new criminal behaviors that were previously not penalized and that from now on constitute a new criminal offense, for example, related to illegal trafficking of organs or terrorist organizations. It has increased the minimum period for crime prescriptions, now established at five years (previously three years).
Actually, on drug trafficking, there was a much-needed reform concerning the so called mules, who come from environments of social exclusion and poverty, usually from other countries. Earlier they had to serve up to nine years in prison for relatively small amounts of drugs that one can carry on the body, the clothes or in a bag, for example, 300 grams. Also we found many people meet these harsh sentences for retail. And meanwhile, the leaders of the criminal networks that had exploited them, were either never convicted, or received only light penalties, so the imbalance and injustice of this system was evident.
The recent legislative amendment will not give freedom to these leaders (most of them are not even in prison), but to people from socially excluded environments, who are exploited, do not take decisions in these criminal networks and have committed relatively small crimes.
We consider the current regulation to be more in line with the principle of proportionality, making a distinction in punishment for those whose conduct is about small behaviors of traffic and those who are responsible for these activities on a large scale.