When Is Shared Drug Use Not a Crime? Legal Defense Guide

In Spain, an increasing number of people face criminal proceedings for drug trafficking offenses, even when the real intention was never to sell, but to consume as a group. These types of situations have given rise to the development of a specific legal concept: shared drug consumption.

According to the Spanish Observatory on Drugs and Addictions, more than 26% of young people between 14 and 18 years old have used cannabis at some point in their lives, and 15.6% have done so in the last month. This data reveals a widespread social reality that, in many cases, leads to legal problems.

What is shared drug consumption and when is it not a crime?

What is understood by shared drug consumption according to the law?

Shared drug consumption is not expressly defined in the Criminal Code, but has been extensively developed by Supreme Court jurisprudence. It is a concept that encompasses conduct where several people jointly acquire and consume a narcotic substance, without intent to promote or facilitate its consumption by third parties.

The key element is that there is no risk to public health, the legal interest protected by article 368 of the Criminal Code. If the act does not involve distribution or intent to traffic, it may be considered atypical, that is, not criminal.

When is shared consumption not a crime

The offense against public health in the Spanish Criminal Code

What does the offense against public health punish?

Article 368 of the Criminal Code punishes those who cultivate, manufacture, traffic, promote, favor or facilitate the illegal consumption of drugs. The penalty can be 3 to 6 years imprisonment, plus a fine, and may be aggravated based on the quantity, type of drug or membership in organized groups.

What is the difference between personal use, shared drug consumption and trafficking?

• Personal use: not a crime if the quantity is intended for personal consumption.
• Shared drug consumption: also not a crime if it meets jurisprudential requirements.
• Drug trafficking: involves intent to distribute or facilitate to third parties.

Determining the actual purpose of possession is essential. The role of the defense attorney will be to demonstrate that there is no such intent to traffic.

What criteria are used to presume drug trafficking?

Jurisprudence applies the Non-jurisdictional Agreement of the Supreme Court of February 3

Are cannabis associations legal? Do they fit into shared drug consumption?

The so-called cannabis associations or cannabis social clubs have proliferated in different autonomous communities, especially in Catalonia and the Basque Country. Although some operate discreetly, many have been subject to criminal proceedings for drug trafficking, claiming as a defense shared drug consumption among their members.

The Supreme Court has reiterated on several occasions that these types of associations do not fit within the doctrine of shared consumption when:

• They have a stable organizational structure open to new members.
• They distribute quantities to people who are not determined consumers from the beginning.
• There is a systematic activity of supply, which exceeds the intimate, private and occasional nature of collective consumption.

In other words, if the association acts as a disguised distribution system, even if without profit motive, it may be considered drug trafficking and its managers convicted.

This has been made clear by the Supreme Court in rulings such as the Supreme Court Judgment of September 7, 2016, where it overturned an acquittal by considering that the association’s activity