Analysis of a Spanish Supreme Court Ruling

This is the analysis of a judicial proceeding in Spain regarding activities with non-controlled substances (NSPs), to be more specific we’re going to focus in the following Judgment of the Spanish Supreme Court:

STS 204/2020 - ECLI: ES: TS: 2020: 204

Cendoj Id: 28079120012020100041

Body: Supreme Court. Criminal Chamber

Headquarters: Madrid

Section 1

Date: 02/04/2020

Resource Number: 2469/2018

Resolution number: 29/2020

Procedure: Appeal

Judge/Magistrate: PABLO LLARENA CONDE

Type of Resolution: Sentence

Resolutions of the case: STSJ PV 1959/2018,

STS 204/2020

The first factual antecedent of this sentence was as follows:

FIRST.- The Investigative Court No. 2 of those of Bilbao opened Abbreviated Procedure 924/2016 for a crime against public health, against YYYYYYYY and XXXXXXX, which once concluded, forwarded for prosecution to the Provincial Court of Bizkaia, First Section . Initiated the Abbreviated Criminal Roll 35/2017, dated March 8th, 2018, issued judgment No. 23/2018 containing the following PROVEN FACTS:

“UNIQUE .- XXXXXX, with passport NUM000, born in Great Britain on NUM001 / 1995, without criminal record, in prison for this cause from 8/12/2016 to 2/16/2017 and YYYYYYYY, born in Great Britain, without criminal records, in prison for this cause from 8/12/2016 to 1/24/2017, together and by mutual agreement in conjunction with British citizens ZZZZZZ and TTTTTTT, finding their whereabouts unknown, they were dedicated at least since the month of June 2006, to the dosage of substances and preparation of orders, commercialization and international distribution of psychotropic substances and substances that cause serious damage to health, not controlled, which were distributed without the corresponding authorization from the Spanish Medicines Agency. Substances were purchased by buyers through the internet and distributed as postal items in the post office to different foreign recipients. A total of 373 packages were seized inside , the substances destined for third parties were found and that according to the drug inspection and control report, their consumption poses a serious risk to health.

Most of the substances are not controlled, although they are structurally related and produce the same effects as those controlled, to which a component has been changed in order not to be recognized, and which constitute a health risk.

To carry out this activity, they use Warehouse 4C located in the Ibarabarri Industrial Estate in Leioa, which had been leased by Gervasio to Imanol, who was unaware of the activity that was taking place in said warehouse."

What is done in the sentence is to relate the substance with that other that is structurally linked to it and that is included in the corresponding list, for example these were just two of the substances found by the police:

“Flubromazepam is an uncontrolled substance, structurally related to Delorazepan (List IV of the 1971 Convention).

5-F-ADB is an uncontrolled substance with cannabimimetic activity. ".

On the other hand, in the legal grounds of the sentence it is mentioned how the defense challenged the drug tests that were prepared by official centers, and in this sense said challenge was rejected.

The following is also manifested in the legal grounds of the sentence in relation to the above:

“The laboratory analysis reflects the nature of the substances that support the prosecution, detailing that it reflects the seizure of 1,135.612 grams of methylphenidate, in addition to other substances that, although they are not included in the substances referenced in the 1971 Convention on psychotropic substances, they are synthetic psychoactive substances that pose a risk to human health, as reported by the head of the illegal drugs department (f. 1087 et seq.)."

On the other hand, the improper application of article 359 of the Penal Code is referred to in the fourth legal basis of the sentence that was denounced by the defense and in this sense this is a very relevant extract of that fourth basis in question:

“The appellants argue that, apart from methylphenidate, none of the substances for whose trade they have been convicted is included in the lists of the Vienna Convention, nor in Royal Decree 2829/1977, of October 6, which regulates the Psychotropic medicinal substances and preparations, as well as the control and inspection of their manufacture, distribution, prescription and dispensing. For this reason, and since the expert report indicates that they are components that try to replace controlled substances, they consider that sanctioning their trade in accordance with the criminal type of article 359.1 of the Penal Code rests on an analogical application.”

In this sense, the defense that was sought by the following literal arguments of the Court extracted from the judgment was dismantled:

"1. The appellants are not right in their arguments. The criminal offense provided for in Article 359 of the Penal Code punishes anyone who, "without being duly authorized, produces substances harmful to health or chemical products that may wreak havoc, or dispatches or supplies them, or deals with them." The normative provision, if it were not for the principle of specialty of article 8.1 of the Penal Code, would cover the punishment of all conducts aimed at the elaboration and commercialization of toxic drugs, narcotics and psychotropic substances contemplated in article 368 of the Penal Code, given its harmful nature to human health.

Excluding these, the material object of the conduct provided for in article 359 of the Penal Code does not conform to a closed list of substances identified by the legislator, but encompasses all those that are likely to generate relevant and significant deterioration and damage in the Physical or mental conditions of an individual, since the criminal type is configured as a crime of abstract or potential risk, of cut or anticipated result, which protects public or community health, which existence is broken down into the following elements: a) the elaboration (also the dispatch, supply or trade in general) of substances harmful to public health or chemical products that may cause havoc, meaning havoc, not great damages (as typified in art. 346), but great evils that they must affect public health, depending on the label of the chapter where the precept is housed; b) that the perpetrator of the crime is not duly authorized - says the precept -, which places us in a normative element of the type, for such actions and c) finally, that such conduct is intentional, in the sense of willful, knowing and wanting such activity, negatively affecting the theory of error.

As indicated above, the criminal offense set forth in article 359.1 of the Penal Code, when referring to all substances harmful to human health, would also cover those criminal behaviors that materialize on toxic drugs, narcotics or psychotropic substances to which referred to in Article 368 of the Penal Code, superimposing this precept as a special provision that encompasses it -and with an aggravated penalty-, in attention precisely to the specific risk that drugs introduce with respect to the good object of protection, both due to the effects secondary inherent to their consumption, such as by the addictive force they carry.

In short, and following our judgment 379/2011, of May 19th, "when the criminal acts fit into two criminal provisions and it is not necessary to apply both to cover the total unlawfulness of the event, we are faced with a contest of rules to be resolved by what is regulated in art. 8 of the Penal Code ", and, specifically in this case, by its 3rd rule, which includes the absorption criterion, to be applied when the broader criminal precept consumes a simpler one. In any case, and as we said in that same sentence: "the consummation of a norm can only be admitted when" no unjust part of the fact "remains without a criminal answer, having to go in another case to the crime contest"."

Ultimately, the sentence ended up considering a crime against public health of article 368.1 of the Penal Code, in its modality of substances that cause serious damage to health, for which they were also sanctioned and whose sentences were maintained in their entirety, these being those included in the following pronouncement, issued by the Provintial Court ruling the case (called "Audiencia" in Spain):

“WE RULE

That we MUST CONDEMN AND WE DO CONDEMN YYYYYYYY, as the author responsible for a CRIME AGAINST PUBLIC HEALTH, in its modality of substances that cause serious damage to health, without the concurrence of generic circumstances modifying criminal responsibility, to the penalty of FOUR YEARS OF PRISON, with the accessory of special disqualification for the right to passive suffrage during the time of the sentence, and to the penalty of a FINE OF THIRTY-TWO THOUSAND EIGHT HUNDRED AND NINETY-SEVEN EUROS (32,897) and FORTY DAYS OF SUBSTITORY ARRESTin case of non-payment ; as well as responsible author of a CRIME AGAINST PUBLIC HEALTH in the modality of substances harmful to health, without the concurrence of generic circumstances modifying criminal responsibility, to the penalty of TWO YEARS IN PRISON and a FINE of TEN MONTHS with a daily quota of EIGHT euros with subsidiary personal liability for non-payment of a fine in the terms of article 53.1 of the Penal Code, and special disqualification for profession or industry for a period of EIGHTEEN MONTHS, all with a condemnation of joint payment of procedural costs.