Every year in Spain thousands of proceedings are initiated for crimes against public health linked to drug trafficking. The Prosecutor’s Report records 23,949 preliminary and urgent proceedings for drug trafficking, of which 12,963 referred to substances that do not cause serious harm to health; furthermore, the Ministry of the Interior highlights that in 2024 more than 400,000 marijuana plants were seized and that cannabis continued to occupy a central place in seizure statistics.
This reality explains why so many investigations start the same way: search and seizure, indoor plantation, manipulated electrical connection and an automatic charge for cultivating cannabis. But in criminal law it is not enough to find plants. It is also not enough for the police to talk about marijuana. The key is whether the elements of article 368 of the Criminal Code are truly present and whether what was seized actually constitutes drugs in the criminal sense.
The Supreme Court has reminded that not all of the cannabis plant falls into this category and that seeds and leaves not attached to the flowering tops are outside the criminal concept of cannabis.
What crime is committed when cultivating cannabis in Spain
The
The second element that must be present is the intent to traffic. The crime under article 368 of the Criminal Code does not punish personal consumption, but rather conduct directed at facilitating the consumption of other people.
To determine if cultivation is intended for trafficking, courts usually assess different objective indicators. Among the most common are:
- a high number of plants
- professional cultivation facilities (lighting, ventilation, automated irrigation)
- organized or industrial plantations
- presence of scales or packaging materials
- cash money in relevant amounts
- communications related to drug sales
When these indicators appear together, courts can conclude that cultivation was not intended for personal consumption, but for distribution or sale to third parties.
In those cases, cultivation can be classified as a drug trafficking crime, with the criminal consequences provided for in article 368 of the Criminal Code.
When cultivating cannabis is NOT a crime in Spain
Not all cannabis cultivation constitutes a crime. In fact, in many proceedings the defense focuses precisely on demonstrating that the elements of the criminal offense are not present.
There are several situations in which cultivating cannabis may not have criminal relevance
What happens if the police find marijuana plants without buds?
Are you looking for an expert drug trafficking attorney?
What to do if you are investigated for cultivating cannabis
If you have been charged with a crime related to cultivating cannabis or for drug trafficking, the most important thing is to analyze the case from the very beginning.
In many proceedings for crimes against public health, the investigation starts from a police report that does not correctly distinguish between the different parts of the cannabis plant. On other occasions, the weighing includes plant material that has no criminal relevance or the expert reports do not precisely describe the seized substance.
How a drug trafficking expert attorney can help you
Proceedings for drug trafficking require very specific technical defense. The analysis of the seized substance, toxicological reports and trafficking indicators requires good knowledge of judicial practice in this type of crime.
A drug trafficking attorney or an attorney expert in crimes against public health can identify errors that frequently appear in this type of investigation, such as:
- incomplete expert analysis of the seized substance
- weighings that include parts of the plant without criminal relevance
- accusations based solely on the appearance of the plantation
- confusion between cultivation intended for trafficking and mere possession or cultivation for personal consumption
When these problems appear in the investigation
Do you need a criminal defense attorney in Madrid?
Abogado penalista en Madrid (Graduado en Derecho y ADE con Máster de Acceso a la Abogacía), experto en procedimientos complejos y técnicos en Derecho Penal. Cuenta con títulos como el Curso de DerechoPenal Avanzado impartido por magistrados del Tribunal Supremo en el Iltre. Colegio de Abogacía de Madrid.