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Law 1/1988 Of 24 March, Reform Of The Penal Code Relating To Illegal Drug Trafficking.

Original Language Title: Ley Orgánica 1/1988, de 24 de marzo, de Reforma del Código Penal en materia de tráfico ilegal de drogas.

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TEXT

JOHN CARLOS I

KING OF SPAIN

To all who present it and understand,

Sabed: That the General Courts have approved and I come to sanction the following Organic Law:

PREAMBLE

As stated in the Motives Exhibition of Organic Law 8/1983 of June 25, of Urgent and Partial Reform of the Penal Code, the modification of Article 344 of that legal body was then limited in scope, He was therefore "solely in the desire to remove the most serious defects which he presents" the only criminal law that our legal system has in place to deal with the problems of illicit drug trafficking. Along with the above, it is not to be lost sight that the aforementioned legislative reform was inserted in a much broader and more ambitious context, which was the very extensive revision, modernization and adaptation to the Constitutional Standard of our old Penal Code, carried out by the Organic Law cited above.

It is now necessary, however, to deal monographic with the modification of a penal precept that, due to different circumstances, has become insufficient to deal with the plurality and heterogeneity of criminal manifestations that they arise around the complex world of drugs.

The reform of Article 344 of the Penal Code, which is now under way, is not presented as the only and isolated instrument to combat drug addiction. In July 1985, the government, in compliance with a motion approved by the Congress of Deputies, approved the National Plan on Drugs, which, at the moment, constitutes a political project inspired by the recognition of the plurality of problems that In this phenomenon and in the consequent conviction of the need to have as many mechanisms as necessary in order to overcome such problems. Hence, the aforementioned Plan provides for coordinated action by different social bodies, both public and private, in the service of prevention and treatment of drug dependence, but also with the aim of pursuing more The effectiveness of illicit drug trafficking.

This objective is intended to be achieved with the present Organic Law, which, in the first place, with the aim of strengthening the function of general prevention that fits the sanctioning rules, establishes an important increase of the deprivation of liberty with which the conduct of prohibited conduct is agreed. However, this increase in criminal rigour is carried out from respect to the elementary principle of justice to deal differently with what is different. In this way, the new penal regulation of these behaviors is intended to accommodate a pyramid structure, on the basis of which they settle those that could be considered as ordinary traffic behaviors, occupying the apex the incrimination of those facts that, Without a doubt, they have the greatest capacity of the legal goods under criminal protection, that is, the actions of those responsible for organizations dedicated to drug trafficking.

This structure is completed with an intermediate step in which those behaviors are placed that, because they are in the same way some element of special reproach, constitute aggravated criminality. Among these, and complementing the so far included in the second paragraph of Article 344, three new assumptions have been included: that the author of the prohibited conduct is a public official or authority, that the psychoactive substances have been adulterated, with an increase in the possible damage to health and which, finally, are made available to people who are in the process of dishabituation.

One of the most important novelties introduced by this Organic Law is undoubtedly the incorporation of a specific legal-criminal treatment for this singular criminological figure of the drug-dependent who incurs the The Commission's proposal for a directive on the protection of the environment is a matter for the Commission. From the conviction that in some of these cases the preventive orientation of the criminal sanctions should be given priority, the possibility of the judicial authority granting the benefit of the conditional remission is available, provided that the If you have become disused or are being treated for this purpose. The regulation of this alternative is carried out with sufficient guarantees in order to safeguard, on the one hand, the coverage of preventive-general purposes, the basis of any criminal law and to avoid, on the other hand, a fraudulent use of the legal provision to allow their application in cases other than those actually dear to the legislator.

Without a doubt, the conviction that, after the criminal conduct related to the drug world, there is only the realization of a great economic business, has already been opened up in the international context. The reduction and elimination of the economic benefits obtained through this criminal activity must stop the most positive achievements in the difficult fight against drug trafficking.

There is also, in the concert of nations, the full conviction that without a close and smooth international cooperation, no effective results can be achieved in this area. The organisational structure of these types of criminal associations and the transnational nature of their activities requires, in truth, this necessary cooperation.

Nevertheless, from the internal laws themselves, an effort must be made to find instruments that will allow the fight against drugs to be brought closer to its undisputed economic entity. From that point of view, this Organic Law establishes three mechanisms that try to address the economic benefits that have emerged from this criminal business. On the one hand, the imposition of fines of very high amounts is available. In addition, a partial amendment of the provisions of Article 63 of the abovementioned rule is established, meaning that the determination of the fine shall be taken into account by the judicial authority, preferably, the profit or gain obtained or that they could have obtained through criminal conduct.

Second, the terms of the figure of the comiso are extended, disposing of the goods, of any nature, used or coming from the criminal conduct. Moreover, in order to ensure the effectiveness of such a measure, the judicial authority is empowered to apprehend the said goods at any time when the process will be found.

In the third term, with the aim of making possible the intervention of criminal law in all sections of the economic circuit of drug trafficking, a new precept is incorporated into Chapter VII of Title XIII of Book II of the Code, which sanctions the behavior of exploiting the effects and profits of that traffic, or what is the same, that pretends to incriminate those behaviors that come being called "laundering" of the money of illegal origin.

Finally, it is worth noting that the repression of the conduct of illicit trafficking and of economic exploitation does not end the fight against the complex world of drugs. It also requires the development of activities to prevent and treat drug addiction by the various public administrations in the field of their competences. The development of such programmes requires considerable economic and planner effort, which must be reflected in the corresponding budgets.

Article first.

Article 344 of the Penal Code is worded as follows:

" Those who execute acts of cultivation, processing or trafficking, or otherwise promote, favor or facilitate the illegal consumption of toxic drugs, narcotic drugs or psychotropic substances, or possess them for those purposes, shall be punished with the lesser prison sentence in his middle grade to a maximum imprisonment in his minimum degree and fine of one million to 100 million pesetas if it were for substances or products that cause serious harm to health, and of greater arrest to his maximum degree to less in their average degree and fine of 500,000 to 50 million pesetas in other cases. "

Article 2.

The following articles are added to the Penal Code:

" Article 344 a).

The upper penalties shall be imposed in grade to the respective ones mentioned in the previous article:

1. When toxic drugs, narcotic drugs or psychotropic substances are provided to children under the age of eighteen or mentally handicapped, or are introduced or spread in schools, in centres, establishments and units military or in prison facilities.

2. º When the facts described in Article 344 are made in establishments open to the public by those responsible or employees of the public.

3. Whenever the quantity of toxic drugs, narcotic drugs or psychotropic substances that are the subject of the conduct referred to in the previous article is of high importance.

4. º When such substances or products are provided to persons undergoing treatment of dishabituation or rehabilitation.

5. º When the referred substances or products are adulterated, manipulated or mixed with each other or with others, increasing the possible damage to health.

6. When the culprit belongs to an organization even of a transitory nature, which has the purpose of spreading such substances or products in an occasional way.

7. º When the culprit is authority, optional, public official, social worker, teacher or educator. "

" Article 344 bis (b).

The Courts shall impose the penalties higher in grade than those mentioned in the previous article where the conduct defined in the same force is of extreme gravity, or in the case of the heads, administrators or managers of the the organisations referred to in their number 6. In the latter case, as well as where the case referred to in number two of the previous Article is present, the judicial authority may also decree any of the following measures:

a) Dissolution of the organization or final closure of its premises or of establishments open to the public.

b) Suspension of the activities of the organisation or closure of establishments open to the public for a period of six months to three years.

(c) Prohibition of the conduct of such activities, business operations or businesses, in whose exercise the offence has been facilitated or covered up, for two months to two years. "

" Article 344 bis (c).

If the facts referred to in Articles 344 and 344 bis (a) are made by an optional, public official, social worker, teacher or educator, in the exercise of their position, profession or profession, they shall be imposed, in addition to the corresponding penalty, that of special disablement. The absolute disablement penalty shall be imposed when the referred facts are made by the Authority or the agent of the same.

For this purpose, it is understood that physicians, psychologists, persons in possession of a health certificate, veterinarians, pharmacists and their dependents are optional. "

" Article 344 bis d).

For the determination of the amount of the fines to be imposed pursuant to the foregoing articles, the Court shall preferably attend to the final economic value of the product or, where appropriate, to that of the reward or profit obtained by the inmate, or could have obtained. "

" Article 344 bis e).

Unless they belong to a third party not responsible for the crime, the vehicles, vessels, aircraft, and any other goods and effects of the nature they force have been used as an instrument for the commission of any of the offences referred to in Articles 344 to 344 bis (b), or they shall prove to them, as well as the proceeds of such offences, whatever changes they may have undergone.

In order to ensure the effectiveness of the comiso, the goods, effects and instruments referred to in the preceding paragraph may be apprehended and placed in deposit by the judicial authority from the moment of the first Diligence. "

" Article 344 bis f).

The convictions of foreign courts for crimes of the same nature as those provided for in Articles 344 to 344 bis (c) will produce the same effects in the Spanish Courts as those of these, in order to establish Article 10 (15) of this Code. '

Third item.

A new Article 93a is added to the Criminal Code, with the following wording:

' Even if the conditions laid down in the preceding Article are not fulfilled, the Judge or Court may apply the benefit of conditional remission to those sentenced to imprisonment of a duration of not more than two years. years, who have committed the criminal act on the grounds of their dependence on toxic drugs, narcotic drugs or psychotropic substances, provided the following circumstances arise:

1. That the subject's drug situation is proven to be proven in the judgment, as well as that the criminal conduct was carried out on the grounds of such a situation.

2. To be certified sufficiently, by duly accredited or approved center or service, that the inmate is disused or subjected to treatment for that purpose at the time the benefit is granted.

3. That the subject is not a repeat offender, nor has it previously enjoyed the benefit of conditional remission.

The judicial authority shall require the sentenced person or the centres or services involved in their treatment of the situation to be required to verify the commencement and continuation of the procedure and to check their progress and any modifications you have to experience.

The suspension of the execution of the sentence will be conditional on the reo not having to delineate in the period indicated, as well as not to abandon the treatment.

Fulfilled the above, once the period of suspension has elapsed and the dishabituation of the inmate has been established, the Judge or Tribunal will agree the remission of the sentence. Otherwise you will order your compliance. "

Article 4.

A new Article 546 bis (f) is added to the Criminal Code, with the following wording, passing the current Article 546 (f) to be Article 546 (g):

" Who with knowledge of the commission of any of the offences regulated in Articles 344 to 344 b) of this Code shall receive, acquire or otherwise take advantage of itself or for a third of the effects or profits from the same, will be punished with lesser imprisonment and fine of one million to 100 million pesetas.

Superior penalties will be imposed on the usual inmates of this crime and on persons belonging to an organization dedicated to the purposes outlined in this article.

In the cases provided for in the preceding paragraph, as well as when, in the Court's judgment, the facts referred to in this article are of particular gravity, the disablement of the inmate shall be imposed, in addition to the penalty for the exercise of their profession or industry and the closure of the establishment for a period of six months to six years or for a final period.

They shall be applicable to the assumptions referred to in this precept the provisions contained in Article 344 (e) of this Code. "

Article 5.

The current article 344 bis of the Penal Code becomes the 344 ter of the Penal Code.

Therefore,

I command all Spaniards, individuals and authorities, to keep and keep this Organic Law.

Palacio de la Zarzuela, Madrid, 24 March 1988.

JOHN CARLOS R.

The President of the Government,

FELIPE GONZÁLEZ MAROUEZ