Did you know that in Spain not every drug delivery, no matter how minimal, constitutes a crime? The principle of insignificance establishes clear limits that can make the difference between a conviction and an acquittal.
This article explains in detail how this principle is applied in drug trafficking cases. It also analyzes real Supreme Court rulings that show when a small amount of drugs does not constitute a crime. If you have ever wondered whether you can be convicted for selling a tiny dose of cocaine or marijuana, here is the answer.
What is the crime of drug trafficking?
Article 368 of the Criminal Code punishes as the perpetrator of a drug trafficking crime anyone who executes acts of cultivation, manufacturing, trafficking or facilitates the consumption of drugs. The penalty is 3 to 6 years imprisonment and a fine equal to one to three times the value of the drug if it involves substances that cause serious harm to health (such as cocaine or heroin).
There is also a mitigated form in the second paragraph of the article, designed for cases of lesser significance, when personal circumstances of the perpetrator and limited relevance of the act occur.
What is the principle of insignificance?
The principle of insignificance excludes from the criminal sphere those conducts that, due to their minimal harmfulness, do not relevantly affect the protected legal interest (public health). In the drug trafficking.
Have you been arrested with a small amount of drugs?
Are you looking for an attorney specializing in crimes against public health?
Is a small amount the same as an insignificant amount?
No. This confusion is common. A small amount can constitute a crime if it exceeds the minimum psychoactive dose. For example, 0.1 grams of cocaine with 60% purity contains 60 milligrams net: an amount above the threshold, therefore, criminally relevant.
The insignificant amount, however, does not reach the toxicity threshold, even if it has been sold or delivered. This is where the principle of insignificance comes into play.
What if the drug exceeds the minimum threshold, but the case is minor?
Here comes into play another distinct figure: the mitigation of article 368.2 CP, which allows reducing the penalty when it is proven that the trafficking was of limited significance and the perpetrator presents favorable personal circumstances (youth, marginalization, drug addiction, etc.).
But they should not be confused:
- If there is no minimum dose, there is no crime (principle of insignificance).
- If there is a dose, but the act is minor, there is a crime, but with mitigated penalty.
What happens if the amount sold is not seized?
This issue has been the subject of debate in several rulings. If the police do not seize all of the drugs sold, but do seize part of it, the Supreme Court has considered that only the amount effecti
Attorney expert in crimes against public health
Are you looking for an attorney expert in drug trafficking?
When does (and when doesn’t) the principle of insignificance apply?
When the principle of insignificance applies:
Insignificant sale of cocaine
Imagine you sell a small amount of cocaine on the street and the police arrest you. This is what happened in this case: the officers observed the transaction, intercepted the buyer and found a small bag with 0.093 grams of cocaine with a purity of 19.15%. When doing the calculations, that represented only 17 milligrams of active ingredient.
Is that enough to convict for drug trafficking? The Supreme Court said no. Since the dose was less than the required minimum 50 milligrams for there to be a risk to public health, there was no crime. The conduct was atypical, that is, not criminally relevant.
However, not everyone agrees with this decision. Some believe that, if the buyer paid 50 euros, the amount sold must have been much larger. However, the Court was clear: only what was seized can be evaluated, not what is presumed.
When the principle of insignificance does NOT apply:
Marijuana with sufficient THC
In this other case, the police intervened 0.48 grams of marijuana with 16% THC. This represents 76.8 milligrams of active ingredient, an amount well above the threshold of 10 milligrams considered the minimum toxic dose for cannabis.
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.