SPAIN - Lecturer in the Department of Law at the University of Malaga where he occupies the Chair of Penal Law.He has authored many articles on the subject of drugs, including "Drug Policies in Spain in the Light of International Tendencies, Recent Developments", published by Manual of Criminal Law.

ABSTRACT: In this analysis, the word "drugs" is understood as substances which are a potential danger to health and provoke addiction in users. The legislation presently in Spain, penal law and social policy of both national and regional authorities are based on this premise. But something quite different came out of the 1971 Convention on psychoactive substances.

("THE COST OF PROHIBITION ON DRUGS", Papers of the International

Anti-prohibitionism Forum, Brussels 28th september - 1st october 1988; Ed. Radical Party)

I. In the context in which we are working, we should define the term "drugs" as referring to substances, the fundamental characteristic of which - apart from any possible direct damage to health - is the dependence produced in those consuming them. It is that specific aspect which makes necessary separate treatment for the social phenomenon of trafficking and the consumption of certain substances. Spanish legislation, social policy-making, both central and autonomous, as well as Spanish Penal doctrine, have with conviction made this their point of departure.(1) The same cannot be said either for the Convention on Psychotropic Substances of 197l (Article 2.4a-II), which provides for the inclusion of substances which have not proven to be addictive -which is, in fact, presently in progress (2)- or for the Stewart-Clark Report, which was instrumental in deciding the position to be taken by the European Parliament (3), despite the fact that the WHO definitions are based on the concept of dependence.

Also, considering the complex nature of their effects, a distinction should be made between substances which produce both physical dependence and psychical dependence and those producing only the latter. The category producing both should include opiates, alcohol and barbiturates; and that producing only the latter, amphetamines, inhalants and coca derivatives. Considerably further down on the scale, is that category not producing even psychical dependence, including tobacco, cannabis derivatives and hallucinogens. Distinctions similar to these are frequent in Spanish penal doctrine, whereas the Stewart-Clark Report is fairly unwilling to take a position on the degree of dependence produced by drugs, and the United Nations even less so.(5)

II. The repeated allusions to normalising or rationalising society's views on drugs often end there. The attitude of resignation, in the face of a situation where the use of drugs has become rooted in every type of culture, and the conviction that it will never be completely eradicated should be abandoned.(6) A distinction must be made between the use and the abuse of drugs. The former must be considered as a form of behaviour which could be positive, inasmuch as it generates self-realisation and provides increased opportunities for interpersonal communication.

III. The policy of dividing drugs into legal and illegal must cease, and the sooner the better. That distinction cannot be justified by either respective addictive potential or danger to health. Nor is there any relevant diversity in the guidelines for favouring one over another beyond those linked to the differentiating factor of prohibition. The assertion that the use of certain drugs has become deeply rooted in our society is no longer relevant, since the internationalisation of drug policies by common assent. That distinction becomes a new form of cultural and economic oppression exercised by the powerful countries through their suppression of the traffic and consumption of those drugs familiar to certain cultures but alien to their own at the same time that they encourage the consumption newer drugs familiar to Western culture. The evident similarities of both types of drug, however, makes it extremely difficult for any preventive policy intending to maintain that distinction to function effectively.

The different consequences experienced by the users of one or the other type of drug, as regards their social integration, simply reflects the difference in their treatment by the law. This view is gaining acceptance in Europe and Spain (9), but nothing definite has been settled as yet in the legislative or executive sectors.

The tendency towards a common policy presents the danger that the current policy on illegal drugs will be used as a model, that is, the application of severe measures of control on traffic and consumption of legal drugs. In fact, the adopting of that policy has already been proposed in certain autonomous regions of the country (10), and recently, even at the national level.(11) The opposite position should be adopted : a policy of prevention as regards legal drugs - currently being adopted in certain countries with considerable success - as a basis for a common drug policy.

IV. I personally share the widespread opinion that the drug phenomenon can be successfully tackled only within the framework of an integrated policy, affecting all phases; cultivation, production, and consumption. In my opinion, the repressive policy followed up to the present - as far as having any effect in those areas is concerned - has clearly proved to be a failure. An emphasis, instead, on prevention and the availability of assistance, would affect the demand rather than the supply - which is what the policy of repression (without success) aims at. These observations reflect generally-held opinion both in European legal circles (12) and at the various administrative levels in Spain (13). This approach, however, clashes strongly with current United Nations policy, which is clearly geared towards repression of the supply (14), reinforcing those sectors of opinion in Spanish and European circles favouring the strengthening of repressive policies.

In Spain, the intensification of the repressive tendencies of the United Nations has coincided with a period of optimism and faith in the practical implementation of the preventive options of the National Drug Programme. The growing acceptance in our country of recent international trends, (15) together with certain misunderstandings and unfair criticism directed at Spanish legislation in European forums (16), have been directly responsible for the setback suffered by the preventive option by the recent penal reform. Our country had not yet had time to satisfactorily experiment with that alternative, nor to achieve the results other countries have. And those reforms - given the close connections between the different aspects involved - endanger the progress already made through the methods of prevention and assistance previously set down by the National Drug Plan, and often in direct conflict with the newly-established policy of repression.

V. The considerable effect - as European experience Europe has proved - of most measures prevention and assistance on the demand is generally recognised in the existing literature on the subject in Spain, and in Europe in general. It is also important to remember, however, that effectiveness in reducing the demand directly depends on whether or not the problem is integrated with providing the possibility for an improved existence based on personal autonomy, in which society takes an active, but non-institutional role.(17) There are certain measures, however, which are controversial. For example, no attempt should be made to provide preventive education for the very young, even at the lowest operative levels, as their education is of necessity based on emotional factors, and thus there is the danger of compromising the capacity for personal self-determination which, at a tender age, is still undeveloped. In addition, there is the possibility of counter-productive reactions in later periods in their lives.(1

8)

Equally important is the clear establishment of limits to be respected as regards any assistance provided, whether for disintoxication or rehabilitation. Also included in such limits should be the respect of the right to differ, and the right to refuse to adopt values which are not strictly necessary to breaking the drug habit. (19) Similarly, care should be taken to avoid that treatment methods in the therapeutic centres become too intense, as has been the case on occasion. (20) Excessively rigid application of the concept of assistance should be avoided. However, assistance should include providing information on the least harmful methods for administering drugs, without actually promoting them.(21)

In any case, the policy of prevention and assistance currently being considered in Spain is in line with the most up-to-date European trends.

VI. Vention and assistance currently being considered in Spain is in line with the most up-to-date European trends.

Decriminalisation in those European forums is presented in terms of effectiveness : It is obvious that the drug problem today goes beyond the harm caused by consumption, and includes prominently the emergence of powerful drug-trafficking organisations which influence, or will in the future, the institutions of many States, and perhaps even the entire democratic world - a fear which is also expressed frequently in the various United Nations agencies.(25)

The issue now being discussed in European Parliament is whether or not decriminalisation would drastically reduce the profits of the drug traffickers, thus depriving them of their economic and institutional power. The option for decriminalisation has been rejected for the moment by the majority, although no final decision has as yet been taken.(26)

I disagree strongly with the opinion that similar measures would be ineffective. To claim that decriminalisation not only would not contribute to a reduction of the number of users, but that it would cause them to increase, is to forget that a similar policy is essentially aimed at smashing the drug traffickers' power, not at reducing consumption - which it is held could only be achieved through preventive measures which, conceivably, would be more effective in the long run, if they were not weighed down by an atmosphere of repression or obstructed by the opposing promotional campaigns financed by the drug traffickers. The disqualification of the incomplete experience of decriminalisation in countries such as Holland is countered by contrasting appraisals.(27) Fundamentally, one obstacle to adopting that alternative is the lack either of the political commitment necessary to present the medium- and long-term advantages of a policy of decriminalisation and prevention to the public, or the courage to endure

the predictable periods of impatience which would result before the effects of that policy became evident.

But the problem must not be seen exclusively in terms of effectiveness. It is also a question of juridic principle. We must ask ourselves what it is we wish to protect. In a pluralist society, it is not permissible to cite the moral health of the citizen in the manner of recent international agreements, and repeated in the agencies of the United Nations (28), even if other benefits are provided. However, if the problem were so simple, there would be no resistance to decriminalisation, and mild measures of social pressure at most would be introduced (strict supervision, spatial restrictions, etc...) - which, in my opinion, is what is done as regards certain activities which are tolerated, if not fully accepted by society (e.g. pornography, illicit gambling...).

The very widely held opinion that what is being protected is public health should be reconsidered.(29) Firstly, because penal protection of public health is based (except in the case of drug trafficking) on the concept of either safeguarding the health of a majority which wants to be protected, or not intervening when that majority does not wish to be protected. But, apart from this, the analogy made with infectious diseases, affirming that we are faced with a problem of collective health where the perpetrator's consent to the harm caused is irrelevant, is unacceptable. As we are dealing with substances similar to those included in other offences against public health, they should be liable to similar regulation, which is aimed at ensuring administrative control of their production and sale, as well as quality-control in line with recent proposals by another Spanish writer (30) and consideration of the adulteration of drugs which has just been introduced into the Spanish Penal Code.(31)

Then, the idea is gradually being accepted that what is most relevant is not the direct damage to health, but the consumer's possible loss of personal autonomy. This tendency in the direction of considering prohibition an offence against individual liberty - already evident in the rest of Europe - is beginning to gain ground in Spain where the very concept of drugs, the criteria for distinguishing between hard and soft drugs, the serious cases involving minors and also specific centres, the new cases involving individuals with reduced or no imputation undergoing disintoxication or rehabilitation treatment, the impunity of the consumer ... is being based on the idea of the loss of liberty. Although doctrine (32) and certain official documents (33) take this dimension into consideration, only one other author has proposed political-criminal action which would be in consequence.

In my opinion, apart from the penal treatment proposed in the paragraph above, offences against individual freedom should include certain provisions to punish drug trafficking involving individuals not in a position to decide and whose consent is consequently considered invalid. These would not only include minors, but also adults with diminished or no imputation, in situations where they could be taken advantage of, under intense psychological pressure, undergoing treatment for disintoxication or rehabilitation, or obviously suffering from the consequences of physical dependence, for the duration of that condition. Distinction or supposed impunity should be established according to the class or intensity of the dependence produced by the substance. In any case, no trafficking between free adults should be punishable.(34a) Obviously, these penal offences will basically affect the levels of trafficking closest to the consumer.

The extensive nature of narco-trafficking necessitates varied penal treatment. Although it will be most directly affected by those controls provided for offences against public health, attention should also be given to the consequences of the internationally-held conviction of the existence of an institutional threat presented by drug trafficking organisations. At this point, we move into the realm of offences against the social-economic order, something as yet only hinted at by some Spanish authors.(35)

The controversy in Spain over the extent to which the social-economic order should be considered an object of protection by the criminal-juridic institutions is well known.(36) For our discussion, however, it is irrelevant, because even according to the strictest interpretation, the behaviour to which we refer, is still covered. Effectively, it is a matter of monopolistic or oligopolistic behaviour with repercussions in all areas of free competition, from the mechanisms of price determination to the safeguarding of the consumer's rights, bringing with it subsequent massive violation of the laws regarding contraband and exchange controls - not to mention the more generic effects exerted on the financial systems. It is necessary therefore to facilitate the application of penal measures which take into account this aspect of the drug traffic organisations' criminal activities, instead of expressing resignation as concerns the current ineffectual, aggravating penal/juridic situation, which is incapable of han

dling the real dimensions of this criminality.

My proposal includes decriminalisation, in principle, of controlled trafficking of drugs, however with the continued punishment of offences against individual liberty or the social-economic order. This option would satisfy the need to protect juridic interest as well as provide a more effective solution to the problem.

VII. Abandoning the idea of global repression, we might proceed by approaching the current situation as it stands dealing with possible partial modifications, drawing attention to the direct conflict between the United Nations agencies - advocating an extension of the concept of cannabis - or between them and the majority in the European Parliament - refusing to make a distinction between soft and hard drugs (37) - and the attitude of the minority in European Parliament and that contained in official Spanish doctrine, which strongly advocate the upholding of that distinction (38) - going as far, on occasion, in important sectors of Spanish doctrine (39) as to put partially into practice, or call for, the liberalisation of cannabis trafficking. I believe that a distinction between one class of drugs and another, not only according to the different degrees of gravity in trafficking, but also with a realistic view of the problem - without exaggeration or distortion - is necessary if a policy of prevention is

to be succeed. Also, given the fact that distinction - as it is connected with dependence as well as the decriminalisation of those soft drugs which are thought to cause dependence - is in line with the aforementioned idea of devoting at least part of these precepts to the idea of protecting individual liberty.

VIII. The persistence in Spanish official, jurisprudential and doctrinal documents in maintaining the impunity of both consumption and the activities directly linked to it, a position which is shared by another European country and the minority in the European Parliament (40), is in my opinion in full accord with those juridic interests which should be protected; the right to use drugs must not be denied, nor must we act against the victim of drug abuse. Also, the concept of different treatment of consumers, regardless of whether or not they are addicts, is - in various degrees - general throughout Europe.

Insofar as the dealer acts in order to satisfy his own dependence, he should be treated in the same manner as the drugaddict consumer . At any rate, the effect of his behaviour on others - except in cases of far-reaching legal reforms which might discriminate according to the class of individual affected - necessitates a moderate penalty, offering various penal alternatives aimed at helping him overcome his dependence. Coming to the same conclusions, albeit by a different route, are Spanish doctrine and official forums, as illustrated by the latest reforms, as well as the proposals of the European Parliament - both of which occasionally also put forth proposals simply for liberalisation. (41) It took long enough for penal alternatives to finally appear in the draft of a new United Nations Convention.(42)

IX. The intentions of the United Nations to extend the term 'trafficking' to include behaviour which has nothing whatever to do with the commercial activity of drugs is beyond acceptance. (43) Spanish legislators - who, after the 1983 reform were particularly careful to omit non-commercial activities from trafficking - in 1988 introduced a new regulation which provides for the punishment of any conduct which promotes, favours or facilitates drug consumption, consequently providing disproportionate scope for punishment and thus violating the principle of juridic security (44). It would be more appropriate to start off with a concept of trafficking corresponding more to present-day marketing techniques; i.e. one including both onerous displacements as well as gratuitous displacements made with the intention of creating or enlarging the market. Other gratuitous displacements would not punishable. Propaganda activities not making use of the system of donations would be difficult to include in the concept of

trafficking, although an interpretation in this respect could be forced.

Regulation in accordance with the aforementioned political-criminal proposals would penalise the cultivation and manufacture of drugs only insofar as they constituted an offence against the penal control of public health, as regards the manner in which the operations were carried out. The same would be true for trafficking, in which case punishment for deceptive advertising would be maintained and measures to protect individual liberty included.

X. The new types of offences to be included, as proposed by the United Nations agencies should be carefully considered. (45)

First of all, classifying as an autonomous offence acts preparatory to the manufacture, distribution, or possession of materials or equipment intended for the production or illegal manufacture of narcotic drugs or psychotropic substances (46), makes it liable above all to the same form of criticism directed at any autonomous punishment of preparatory acts of this type; i.e. the excessive distance separating those preparatory acts from the damage to the juridic good makes it difficult to speak of damaging the juridic welfare. Also, the lack of agreement as to subjective exigencies and the obvious difficulty in obtaining proof, given the varied destinations of such material or equipment (for example, an encapsulating machine), make one fear that the principles of juridic security and legality would not be respected if a similar precept were to be applied. In any case, the punishment for such preparatory acts is inconsequent, considering that there is an intermediate phase between them and the production or m

anufacture of narcotic drugs or psychotropic substances; i.e. the production, distribution or possession of the chemical raw materials from which the narcotic drugs or psychotropic substances are obtained are only subject to administrative control (47). The counter-argument as to their being used to obtain legal products is equally valid for the materials and equipment under consideration for penalisation. The Convention Draft itself proves that it is possible to be more consequent by its intention to widen the term 'cannabis' to include the seeds which are absolutely necessary for its cultivation.(48) All the above considered, it is not surprising that there has been little European - or for that matter non-European - response to the proposal to widen the scope of punishment. As regards Spain, its introduction would go against the generalised opinion that, "the possession of seeds, plants, raw materials...to cultivate or manufacture drugs is not punishable, and must continue to be thus."(49)

The new attitudes towards receiving-the acquisition, possession, transference or laundering of a product derived directly or indirectly from illegal drug trafficking - were generally well received in European circles, provided that the receiver was aware of the product's origin.(50) This type of receiving is distinctive from the usual concept of receiving, as set down in our legislation' i.e. Firstly, it must correspond to the hypothetical case of substitute receiving not covered in 546 bis a) on a good number of occasions, given that what is being considered is not only reception of the 'effects' of the offence - i.e. the monetary sums obtained from drug trafficking - but also goods obtained with this money. It is in this sense that the term 'product' is used, and the reference to that which is derived 'directly or indirectly' from trafficking made.(51) On the other hand, the juridic good which is protected is not the same as that of the offence, the effects of which benefit the receiver, because this ins

tance of receiving cannot be said to be damaging to public health.(52) Likewise, the specification that the basic offence must be against the "economic good" would not be respected because, today, the basic offence is against public health, and only a very broad concept of "economic good" would permit something similar. (53) All the aforementioned did not prevent the introduction into the Spanish Penal Code in 1988 of a precept which includes, to a large extent, the proposals of the United Nations in this context, resulting in a specific concept of receiving.(54) In any case, the obvious necessity for the creation of a similar concept (of receiving), together with the two differences resulting when faced with 546 bis a), make clear the ineffectiveness and error of considering these offences (in a situation of intense trafficking) as offences against public health and not against the social-economic order.

On the other hand, leaving aside the extension of punishment substitute receiving would entail, it will be usual in cases of this sort that any receiving, whether isolated or combined, will have been agreed upon beforehand, in which case, the new penal offence will not be applied by jurisprudence, but instead that of commission or complicity in drug trafficking.(55)

In conclusion, there remains the new regulation on degrees of complicity and the execution of these offences, which implies a disproportionate extension of the limits of penal protection. First of all, punishment of merely "counselling the commission of any offence" is considered as distinct from the other preparatory acts - conspiracy and abetting - which are also penalised and punished without being integrated into the various degrees of participation which are also punished. Secondly, as all these forms of punishable behaviour are related both to the offence of drug trafficking and the autonomous offences involving certain preparatory acts or receiving, the scope of punishability is enormously strengthened. However, that reference cannot be made by having recourse to the generic regulations of the Code on degrees of execution or participation because - according to Article 55 - it is not possible to accept the punishment of pre-preparatory acts to autonomous preparatory acts or the receiving of a speci

fic type of receiving, because although participation in autonomous preparatory acts or different degrees of execution in cases of autonomous participation is possible,(56) the general principles of the Code would again have to be stretched in order to create specific precepts.

Despite the generally poor response this proposal of the United Nations has had, alleging that the generic rules of participation and execution are enough, (57), the Spanish reform of 1988 has indirectly accepted it by accentuating, with its new description of punishable behaviour, especially by including the terms "promote, favour, facilitate", the punishment of types of behaviour which are far removed from damage to the juridic good of public health.

XI. The toughening up of the present penalties, as proposed by the United Nations agencies, has received qualified support.(58) Indeed, references to the fact that fines should be in proportion to the amount of the profits obtained, and that prison sentences should be sufficiently intimidating, are reasonable for medium or high intensity trafficking, even though the volume of profits obtained today is so great that it would be unlikely that any penalty, not matter how severe, would be considered intimidating, therefore constituting yet another argument in favour of the new repressive approach. What does not seem justified now is the demand that all cases of drug trafficking be considered serious offences liable to the corresponding penalties, or excluded from the usual penal alternatives or penitentiary benefits. That proposition, which has been rejected - and rightly so - by many European countries,(59) suggests not only that the differing gravity of the acts should not be taken into consideration, but t

hat to do so would be counter-productive. The specific, and generally more generous, regulation providing for the probation of drug-dependent delinquents, introduced in Spain in 1988, is an example of that approach of differentiation, characteristic of the European countries.(60)

However, discussion has developed over the proposal to introduce extensive regulation for seizure and forfeiture of proceeds from illicit trafficking.(61) This would imply, first of all, the creation of a specific concept of forfeiture - as distinct from that contained in Article 48 of the Penal Code, which does not include benefit or gain obtained from the commission of the offence - which would be similar to that of Article 393.(62) Such an amplification, generally supported by some authors, for all forfeiture,(63) would come up against those fears which arise in our juridic system whenever any norm might approximate general confiscation - fears which prove that, even with the present strict regulations on forfeiture, not all the possibilities have been exhausted.(65) Undoubtedly, forfeiture thus interpreted will allow the procedural measures which the United Nations call "freezing" and "seizure" to be linked to the form of seizure contained in Article 589 and foll. of the Law of Criminal Procedure, sinc

e it constitutes the insuring of the responsibility of the perpetrator, at least as regards the penal responsibilities resulting from forfeiture.(66)

The fears that this disputable amplification of the concept of forfeiture and seizure gives rise to, have considerably increased, if one is to judge from the reactions of certain European countries,(67) to the poor guarantees offered in its application. The intention is that seizure may be decreed by non-judicial authorities and that seizure and forfeiture may be imposed by civil judicial authorities. It is accepted that there will be an extensive use of presumptions of the inversion of the burden of proof as to whether the proceedings have come from illicit trafficking or if the accused was aware of it...and, as if that were not enough, it also permits the forfeiture of goods or rights of persons who have not been convicted, or even prosecuted, if the court holds that there is sufficient proof that they were aware of the origin of the product. All these possibilities remove once and for all the proposal of basic principles as regards forfeiture and seizure, a few of which are the following: the impossibil

ity of applying forfeiture to a person who is not guilty of the offence; the impossibility of imposing forfeiture of goods belonging to a person who has not proved that he is not criminally responsible.(68)

If the lack of the aforementioned guarantees were rectified, we might find ourselves with a penal sanction adequate for medium and high-level trafficking. Spanish legislature interpreted it thus in 1988, respecting those basic principles of forfeiture and seizure.(69)

XII. There is considerable European reticence as regards the strengthening of other procedural mechanisms, beyond seizure, such as reinforcing the principle of international justice, the establishing of dissuasive terms of prescription, or the easing of principles which limit extradition, as proposed by the United Nations.(70) In short, there is an awareness of the necessity to harmonise functioning and frequency. There does not, however, seem to be any inclination to ignore the principles laboriously established in the European Convention for Extradition. (71) In Spain, provisions according to international legal norms as regards these offences is accepted in Article 23.4. of the organic law of the judiciary; the undermining of the above principles limiting extradition would go against the recent (1985) law of passive extradition.(72)

XIII. A form of police activity which recently has become particularly controversial is "controlled delivery". The United Nations' proposal has aroused suspicion in more than one country, in the first place because there is fear that initiative and control could cease to be the prerogative of the country where the acts are committed; in the second place, because it conflicts with certain legal aspects of the so-called continental juridic system.(73) In fact, police abstention in these cases constitutes the supposition in principle of a violation of specific police duties, as contained in the penal procedural and organic laws,(74) and conceivably constitute - in cases where an offence might have been prevented - a case of complicity by omission, if it is generally considered possible and where the position and duty as guarantor apply.(75) However, in the interests of efficacy, and should judiciary authorisation be necessary, there are no - or at least there should not be - any insoluble legal obstacles to it

s inclusion in our legal code. In any case, we are not here concerned with resolving hypothetical cases of police provocation - which we will leave to another occasion - because the adoption as a general rule of induction by omission is debatable at best, and even more so in this case.(76)

The proposal that ships flying foreign flags be boarded on the high seas is understandably viewed with suspicion by countries worried about the possible threat to national sovereignty if procedure is not established which, without sacrificing effectiveness, offers sufficient guarantees in that respect.(77)

The affirmation repeatedly made in Spanish official documents of the necessity of persecuting the small trafficker, in response to the general public outcry provoked by his apparent impunity and the necessity of safeguarding public security,(78) as well as being exposed to criticism as to who constitutes the real object of protection in drug trafficking, already mentioned, implies that a continuation of this situation would result in the application of the mechanisms of intimidation in general, and in the end would result in the creation of a vicious circle, because the problems of public security and dropping out of society are closely linked to excessive penal persecution of drug trafficking and the subsequent repercussions on trafficking and consumption at the lowest levels.

XIV. As regards the new control and monitoring measures, apart from the penal law, techniques of crop substitution are impossible, as suggested repeatedly in the European Parliament, using coercive methods.(79) This means forgetting the consumer countries' share of the responsibility for the dissemination of these crops, and - what is more important - for the spread in those countries of the so-called legal drugs. It is also an attack on the cultures of these countries, not to mention their national sovereignty. But these matters have already been brought up before the European Parliament.(80)

The proposal formulated by the United Nations to impose sanctions against commercial carriers which have not taken reasonable precautions against their vessels being used for illicit trafficking has been received with great caution. In fact, it is not clear whether these are administrative or penal sanctions, which could signal the beginning of penalties for imprudence in drug trafficking.(81)

The monitoring of the trade in materials and equipment which could be used in the manufacture of drugs proposed by the United Nations ex novo has been rejected by the industrialised countries. That would mean increasing the attention given to preparatory acts, which are even further removed from the damage to the juridical good.(82)

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(1) As in the Plan Nacional sobre drogas, which was passed on the 24th of July 1985 and is at present being applied (see "Legislacion sobre drogas Tecnos, 1986, pp. 800-801), and in the Ley de la Comunidad autonoma de Catalunya of 25 July 1985 (see Diari oficial de la Generalitat de Catalunya, No. 572 of 7-8-1985,Preambulo and Art. 3), as well as almost all of Spanish doctrine, summarized in Diez-Ripolles. "La politica sobre drogas en Espana a la luz de las tendencias internacionales. Evolucion reciente." Annuario de Derecho penal y Ciencias penales. 1987, p. 373.

(2) For example, see the reasons given in the proposals to include five new substances in the Convention, as contained in Document E/CN.7/1987/ of December 2, 1986, of the United Nations Commission on Narcotic Drugs A 2-114-/86 Series A of October 2, 1986. Session documents. European Parliament. European Communities).

(4) See Diez-Ripolles and the doctrine quoted by same, op. cit. p. 374.

(5) See paragraphs 30-34, 246, 45, 54-56, 119 of the Informe Stewart-Clark op. cit. P. 348 and ff., 358.

(6) A much-repeated opinion in the documents of the European Parliament (Informe Stewart-Clark. op. cit. paragraph 248 and The Opinion of the Minority on p. 96), Spanish official judicial and administrative circles (Plan Nacional sobre drogas op. cit. p. 800) and Spanish doctrine (see doctrine as quoted by Diez-Ripolles op. cit., p. 374-375).

(7) Along the same lines Beristain Ipina. "Delitos de trafico ilegal de drogas." In "La reforma del Codigo penal de 1983. Tomo V., Vol. 2." Edersa. 1985, p. 803; Prieto Rodriguez. "El delito de trafico y el consumo de drogas en el ordenamiento juridico penal espanol." Bose 1986, p. 3-4, 44l.

(8) Clearly The Opinion of the Minority of the Informe Stewart-Clark op. cit., p. 96 and various interventions of Representatives of the Parliamentary Groups of the left in the debate which took place on the aforementioned report in the plenary meeting of the European Parliament on October 7, 1986 (Debats du Parlement Europeen. Document No. 2-343).

(9) As Informe de la comision especial de investigacion sobre el trafico y consumo de drogas en Espana. Boletin Oficial de las Cortes Generales. Senado. II Legislatura. Serie I, No. 206 of 2511-85, pp. 8276-8278. In Spanish doctrine (see quotations in Diez Ripolles, op. cit., p. 378), there is frequent mention of the distorting effects on prevention resulting from the different approaches to legal and illegal drugs.

(10) Especially, Ley de la Comunidad autonoma de Catalunya of July 25, 1985, Arts. 15 and ff. and Proyecto de ley on prevention, assistance and reinsertion as regards drug dependence and which is being dealt with in Parlamento Vasco at this time.

(11) See the R. D. of March 4, 1988.

(12) Likewise, Informe Stewart-Clark op. cit., paragraphs 153 and 24, numerous interventions of representatives of all groups during the debate on the aforementioned Informe in the plenary meeting of the European Parliament (debats du Parlement europeen, op. cit.), which resulted in particular mention in Point 12 of the draft resolution submitted to the Council of Ministers of the European Communities via the "Resolucion sobre el problema de la droga" adopted by the European Parliament of October 9, l986 (Diario Oficial de las Comunidades No. C283 of 10-11-86).

(13) As Informe de la Comision especial de investigacion sobre el trafico y consumo de drogas en Espana. op. cit. p. 8279-8281; Comision de Sanidad y Seguridad social del Senado. Comparecencia del Delegado del Gobierno para el Plan nacional sobre drogas. Diario de sesiones del Senado. Cortes Generales. III Legislatura No. 7 of 4-121-86, pp. 8, 12, 18, 19. The idea of opting for prevention rather than repression is widespread in Spanish doctrine. See quotations compiled by Diez-Ripolles, op. cit. p. 376.

(14) In this respect, it is very interesting to follow the documents which, in accordance with the Resolution of the General Assembly of the United Nations 39/141 of December 14, 1984, emanate from the Commission on Narcotic Drugs of the Economic and Social Council, preparing the way for a new convention against narco-trafficking. Very significant are recent documents entitled, "Iniciacion de la elaboracion de un proyecto de convencion contra el narcotrafico". (Document E/CN .7/19085/19 of January 14, 1985) and "Aplicacion y elaboracion de instrumentos internacionales sobre la fiscalizacion de estupefacient y sustancias psicotropicas" (Document E/CN.7/1987/2) containing a preliminary draft of the new convention against narco-trafficking, and checked by a group of experts, the findings of which are given in Documents E/CN.7/1988/2 Part IIa) IV. It is only in the last two documents that mention of measures for rehabilitation began to appear (Art. 2.2 of the rev. text of the Convention draft).

(15) At the official level, such acceptance undoubtedly influenced the affirmations of the Minister of Health and Consumer Affairs made before the Comision de Politica Social y de empleo del Congreso de las Diputados of May 14, 1987 (Diario de sessiones del Congreso de las Diputados. Cortes Generales. III Legislatura No. 133, pp. 4982 and ff.), where continual reference is made to the change in legislative policy on drugs especially evident in the agencies of the United Nations and the Council of Europe, which clearly opt for repression, and which Spanish official, judicial and administrative circles earnestly wish to adapt. (see especially pp. 4985, 4986, 4989, 4990, 4991, 4995, 4997, 5001, 5002, 5015).

(16) As in the Informe Stewart-Clark and according to the parliamentary groups of the right in the debate following the presentation of the aforementioned report, the criticism of which concentrated on the drug policies of Holland and Spain. See a summary of these in Diez-Ripolles, op. cit., p. 361-362. The government delegate for the National Plan on Drugs, appearing before the Senate in November 2986 (Comision de Sanidad y Seguridad social del Senado, op. cit., p. 20-21), recognised the negative impression other European governments have of Spain's drug policy, in many cases as a result of incorrect information. On the other hand, in May of 1987, once the change in Spain's drug policy had taken place, the Minister of Health and Consumer Affairs, appearing in the Congreso de los Diputados, denied that such a negative attitude had ever existed in Europe. (Comision de Politica Social y de empleo. op. cit., p. 4997).

(17) As in Informe Stewart-Clark, op. cit., paragraph 44 and Minority Opinion, p. 99, Informe de la Comision especial de investigacion sobre el trafico y consumo de drogas en Espana, op. cit., p. 8280, 8282, Plan nacional sobre drogas, op. cit., p. 802804.

(18) This proposal was enthusiastically received however by the Informe Stewart-Clark, op. cit., paragraph 155-157.

(19) Equally as clear in the Informe de la Comision Especial, op. cit., p. 8288; Plan nacional sobre drogas, op. cit., p. 805806; Proyecto de ley, which is in the process of becoming law in the Parlamento Vasco.

(20) Likewise, Informe Stewart-Clark, op. cit., paragraph 211 and foll. Informe de la Comision especial...op. cit., p. 8289.

(21) In the same way, The Opinion of the Minority of Informe Stewart-Clark. op. cit., p. 99.

(22) In the same way, Informe Stewart-Clark, op. cit., paragraphs 116-123, mentioned that possibility, and although it rejected, proposal is made for further discussion on the point. The Opinion of the Minority (Informe Stewart-Clark, op. cit., p. 95, 96, 98), on the other hand, is more disposed towards this solution, and proposes convening an international conference to study the viability of anti-prohibitionist policy in conjunction with information campaigns on the risks of drug consumption. The debate on the possibility of legalising drugs continued into the plenary session of the European Parliament (see Debats du Parlement Europeen, op. cit.), and the result was the inclusion, in the draft resolution submitted for approval to the Council of Ministers of the European Communities, the commitment to convene a European conference to "study all the effects and implications of drug consumption in order to evaluate, among other things, the activities of criminal organisations and in particular the social and

physical consequences of drugs". op. cit.).

(23) Although, in the Senate's Informe de las comision especial and the Plan Nacional de drogas op. cit., the absence of reference to the alternative to legalisation is striking, in the Comision de Politica social y empleo del Congreso de los Diputados op. cit., pp. 4989, 5001, there are explicit declarations against it - totally in line with the change of policy mentioned.

(24) See options to this effect collected in Diez-Ripolles, op. cit., p. 376-377.

(25) Likewise, Informe Stewart-Clark, op. cit., paragraph 6, and The Opinion of the Minority, op. cit., p. 95. Likewise Iniciacion de la elaboracion de un proyecto de Convencion...op. cit. Preambulo.

(26) See Informe Stewart-Clark, op. cit., paragraphs 116 to 123 and The Opinion of the Minority, op. cit., p. 98. The question was also amply discussed in the plenary session of the European Parliament (see Debats du Parlement Europeen...op. cit.).

(27) Which is particularly evident in the various interventions noted in the Plenary Session of the European Parliament (see Debat...op. cit.) and also in Informe StewartClark, op. cit., paragraph 118-119.

(28) See the preambles of the Single Convention of 1961 and the Convention on Psychotropic Substances of 1971 (In "Legislacion sobre drogas", op. cit., pp. 201, 267). Also the Resolutions 39/141 and 39/142 of the General Assembly of the United Nations.

(29) The consideration of public health as the predominant juridic good is very common in Spanish doctrine (see Diez-Ripolles, op. cit., p. 378).

(30) As Bustos Ramirez, "Manual de Derecho penal. Parte Especial". Ariel (1986), p. 378.

(31) See new Art. 344 bis a) 5 of the Spanish Penal Code.

(32) See Spanish doctrine in this respect as summarised by Diez-Ripolles, op. cit., p. 379.

(33) As in Informe de las Comision especial...op. cit., p. 8289; Plan nacional sobre drogas, op. cit., p. 802.

(34) As Bustos Ramirez, op. cit., p. 277-278.

(34a) The 1988 Reform of the Spanish Penal Code introduced or consolidated the aggravating circumstances as regards some of these conditions of absence of liberty (see Art. 344 bis a), without, however, eliminating the penalisation of trafficking between free adults.

(35) As Garcia-Pablos Molina, "Bases para una politica criminal de la droga". In "La problematica de la droga en Espana", Ederas (1986) p.39, Beristain Ipina, "Dimensiones historica. economica y politica de las drogas en la Criminologia critica". In "Delitos contra la salud publica", Universidad de Valencia (1977) p. 59. ex Beig-Mira Benaventi, "La reforma penal en relacion con la problematica de la droga". In "Drogas: Aspectos juridicos y medico-legales", Faculty of Law, Palma de Mallorca (1986) p. 15.

(36) See the compilation of the different doctrinal pronouncements in Diez-Ripolles, op. cit., p. 392.

(37) With respect to the former, see Art. 1 e) of the preliminary draft of the new Convention (Document E/CN.7/1987.2),and the modifications proposed by the group of experts who, although avoiding express mention of amplification, facilitate it by substituting the terms "substances" for "drugs" in the lists of the Convention of 1961 (Document E/CN.7/1988/2 (Part II)). As regards the latter, note the absence of reference in the documents to the distinction of the United Nations and the refusal to distinguish between hard and soft drugs in the Informe StewartClark, op. cit., paragraphs 119-122, which was corroborated by the attitudes of the parliamentary groups during the Plenary Session of the European Parliament (see "Debats...", op. cit.).

(38) As in The Opinion of the Minority of Informe StewartClark, op. cit., p. 98, also left-wing parliamentary groups during the European Parliament Plenary Session (see "Debats...", op. cit.). In Spain, Informe de la Comision especial..." op. cit., p. 8283, Plan nacional sobre drogas, op. cit., p. 804, and the major part of the doctrine, which also indicates that jurisprudence has been making that distinction for some time in assessing penalties (see Diez-Ripolles, op. cit., p. 380-381).

(39) As regards Spain, note the large number of criminalists who are against penalisation of cannabis trafficking, even with lege lata analysis, and not only with one of lege ferenda (in the first case, they are not backed up by jurisprudence), in Diez Ripolles, op.cit., p. 381.

(40) As in Informe de la Comision especial..., op. cit., p. 8283, appearance of the Government delegate for the Plan nacional sobre drogas, before the Senate Comision de Sanidad and Seguridad social, op. cit. p. 21. Spanish doctrine is resolute and practically unanimous on this point which has been supported by jurisprudence at least since the 1970s (see Diez-Ripolles, op. cit., p.383-384). Along the same lines, The Opinion of the Minority of the Informe Stewart-Clark, op. cit., p. 98, and the parliamentary groups of the left in the Plenary Session of the European Parliament (see Debats...op. cit.).

(41) As In forme de las Comision especial...op. cit., p. 8283;Plan nacional sobre drogas, op. cit., p. 805. Diez-Ripolles, op. cit. p. 385, summarising the numerous opinions in Spanish doctrine in this respect. These expectations were fulfilled by the reform of 1988, in accordance with Article 93 bis. Also Informe StewartClark, op. cit.,paragraphs 10, 108, 110, 111, and The Opinion of the Minority, Ibid., p. 98.

(42) This did not happen before the reform of the Draft Convention by a group of experts in October 1987 (see revised text of the draft in Document E/CN.7/1988/2 (Part II), Art. 2.2 c)).

(43) See references made to "delivery on any terms whatsoever" and "facilitating of the aforementioned operations or activities", in Art. l.i of the preliminary Convention draft (Document E/CN.7/ 1987/2), or to the former (and related) of "possession of any controlled substance for the purpose of any of the foregoing activities", in the text revised by the group of experts (Document E/CN.7/1988/2 (Part II)).

(44) See Art. 344 of the Penal Code following the reform of 1988.

(45) We shall use the documents which contain the preliminary draft of the Convention and the revised text of that draft, as drawn up by a group of experts (Documents E/CN.7/2987/2 and E/CN.7/1988/2 (Part II. IV)).

(46) See Art. 2.1b) of the preliminary draft, and 2.1 a)ii b(ii of the revised text. The latest text restricts the behaviour provided for in prohibition by stipulating that the subject was aware of the illicit destination of such material and equipment.

(47) As in the preliminary draft, Art. 8.

(48) See Art. l.e) of the preliminary draft and of the revised text and supra note. The group of experts realised that this contradiction existed and, at the last moment, included "traffic in specific chemicals contrary to Article 8 of the present Convention" in the concept of illicit trafficking (see revised text, Art. lh)), which does not appear to be the best remedy for that contradiction. The best thing to do would be to eliminate the autonomous punishment of these preparatory acts.

(49) Conde Pumpido, "El tratamiento penal del trafico de drogas, Las nuevas cuestiones", in "La problematica de la droga en Espana", Edersa (1986) p. 125, in an analysis made previous to the reform of 1988, but which has remained valid.

(50) See Art. 2.1c) of the preliminary draft, and 2.1.a) iii, b) i, of the revised text, in which reference is made to the aforementioned subjective element. On the European level, there was considerable comment on the preliminary draft, accepting in fact these new criminal offenses, provided however that the corresponding subjective element be introduced (see Documents E/CN.7/1987/2 Add. 1 and 2). Informe Stewart Clark also accepts these measures, op. cit., pp. 103-106, which were judged favourably also in various interventions during the Plenary Session of the European Parliament ("Debats du Parlement Europeen", op. cit.), to the extent that they were specifically mentioned in the "Resolucion sobre el problema de la droga", adopted after the debates of the aforementioned Parliament (see Diario oficial de las Comunidades europeas, op.cit.).

(51) The concept of "product" disappears in the revised text, but the description of prohibited conduct proposes that an in-depth study be made of the possibility of including acts of concealment of profits derived from trafficking.

In general, against substitute receiving in Spain, Bajo Fernandez, "Manual de Deerecho penal. Parte Especial II", CEURA (1987) p. 334; Rodriguez Devesa, "Derecho penbal espanol. Parte Especial", 9th Edition (1983) p. 546; Bustos Ramirez, "Manual de Derecho Penal. Parte Especial", Ariel (1986) p. 249.

(52) Those insisting on the requisite of relative equivalence of both juridic goods include, Bajo Fernandez, op. cit., pp. 391 392; Munoz Conde, "Derecho penal. Parte Especial", Universidad de Sevilla (1985) p. 314.

(53) Such an inclusion would be rejected by Bajo Fernandez, op. cit., p.334; Rodriguez Devesa, op. cit., p. 545; Martos nunez, "El delito de receptacion", Montecarvo (1985) p. 195 and foll.;Rodrigues Mourullo, "Comentarias al Codigo penal",, Ariel (1976) p. 921. It would perhaps be accepted by Bustos Ramirez, op. cit., pp. 249 foll.; Munoz Conde, op. cit., p. 316.

(54) See the new Art. 546 bis f) of the Spanish Penal Code.

(55) See the jurisprudential position in Munoz Conde, op. cit., p. 314; Bajo Fernandez, op cit., p. 338.

(56) See the punishment proposals for these types of conduct in Art. 2.1.d) of the preliminary draft and in Art 2.1.b) of the revised text.

As to what Art. 55 of our Penal Code implies, see Rodriguez Mourullo, "Commentarios al Codigo penal", Tomo I, pp. 140-162, and Tomo ii, p. 240. However, it is not exactly the same case, since it relates two autonomous offences, the receiving of goods from receiving is accepted by doctrine and jurisprudence; Rodriguez Devesa, op. cit., p. 544; Banjo Fernandez, op. cit.,p. 334; Martos Nunez, op. cit. pp. 199-202.

(57) See the observations of the various countries on the preliminary draft of the Convention (Documents E/CN.7/1987/2/ Add. 1 and 2).

(58) The proposal to toughen up is found in Art. 2.2 of the preliminary draft, and in Articles. 2.2 and 2.4 of the revised text.

See a summary of the observations offered by the various countries on this aspect of the preliminary draft in Diez-Ripolles, op. cit., p. 355. Likewise, Informe Stewart-Clark, op. cit., paragraphs 10, 108 and foll., and the various interventions in the Plenary Session of the European Parliament (see Debats du Parlement Europeen, op. cit.).

(59) See the European references to the previous note.

(60) See Art. 93 bis, introduced into the 1988 Spanish Penal Reform.

(61) See the proposals in this respect in Art. 3 of the preliminary draft and the revised text.

(62) See Manzanares Samaniego, "Las penas patrimoniales en el Codigo penal espanol", Bosch (1983) pp. 265-267; Cordoba Roda, "Comentario al Codigo penal", Vol. II, Ariel (1976) p. 196; L. Diaz, "Las consecuencias juridicas del delito", Tecnos. (1985), p. 114.

(63) See Manzanares Samaniego, op. cit., p. 352.

(64) On forfeiture as a specific type of confiscation, special confiscation, in short, see Manzanares Samaniego, op. cit., p. 251.

(65) On the failure to use forfeiture in many cases where it could be applied, see Cordoba Roda, op. cit., p. 198; Landrove Diaz, op. cit., p. 113.

(66) In any case, one should not forget the new alterations of the concepts of forfeiture and seizure which the proposed regulation implies by including in the concept of "proceeds", which are object of the forfeiture, strictly pecuniary elements, and by the previous seizure necessarily referring not only to "responsabilida es pecuniarias", as our law of procedure specifies at present.

(67) See the observations presented by the various countries on the preliminary draft, in Documents E/CN.7/1987/2/Add. 1 and 2, and systematisation in Diez-Ripolles, op. cit., p. 355.

(68) Contrary to what is proposed in the preliminary draft, the revised text has introduced the possibility of the interested parties maintaining, if their internal legislation so requires, all activities within the framework of criminal jurisdiction, eliminating the presumptions, although neither the inversion of the onus of proof nor, with sufficient clarity, the forfeiture of goods of persons who have not been convicted or even prosecuted. See Art. 3 of the revised text.

See the basic principles of forfeiture as given in the text, of Manzanares Samaniego, op cit., pp. 278-280, 353; Cordoba Roda, op. cit., p. 199.

(69) See Art. 344 bis e) of the Spanish Penal Code following the 1988 ref.

(70) See Articles 2.7 and 4 of the preliminary draft, and 2.5, 2 bis and 4 of the revised text.

See the observations of the European countries on the proposals contained in the preliminary draft in Documents E/CN.7/ 1987/2/ Add, 1 and 2.

(71) See an analysis of these in Cerezo Mir, "Curso de Derecho penal espanol. Parte General l. Introducion. Teoria juridica del delito", Third Edition (1985), pp. 221-233. See also Informe Stewart-Clark, op. cit., paragraphs 92 and 93, and "Resolucion sobre el problema de la droga", op. cit. (European Parliament).

(72) See Cerezo Mire, op. cit., pp. 234-239.

(73) See Articles l d) and 7 of the preliminary draft, observations of the various countries on the introduction of such a technique (Documents E/CN.7/1987/2/ Add. 1 and 2) and Articles l d) and 7 of the revised text which weakens greatly the introduction of this technique, which was reformulated - in opposition to the preliminary draft - in a very generic way.

Informe Stewart-Clark supports the system of controlling delivery, op. cit., paragraphs 132 and 133. the Code of Criminal Procedure, likewise Art. 5 of the Law regarding the Police and Security Forces.

(75) On complicity by omission, see Jescheck and Mir Puig, "Trat. de Derecho Penal. Parte General", Vol. II, Bosch (1981), pp. 858, 863, 967 and 976-977, which provides extensive German and Spanish legal and bibliographical references.

(76) Ibid., pp. 981, 962 and 975, and Mir Puig, "Derecho penal. Parte General" (1985), pp. 345-347.

(77) See such suggestions in Art. 12 of the preliminary draft and the revised text. Likewise, see observations of the various countries on this point in Documents E/CN.7/1987/2/Add. 1 and 2.

(78) Informe de las Comision especial...op. cit., pp. 82868287; Plan nacional sobre drogas, op. cit., pp. 829-831; Comision de Politica Social y de empleo of the Congreso de Diputados, op. cit., p. 4989.

(79) Informe Stewart-Clark, op. cit., paragraphs 63, 69, 70, 72, and the parliamentary groups of the right in the Plenary Session of the European Parliament, during the discussion of the report (see Debat du Parlement Europeen, op. cit.).

(80) See The Opinion of the Minority in Informe Stewart-Clark, op. cit., p. 97, and comments by the parliamentary groups of the left during the Plenary Session of

the European Parliament (Ibid.).

(81) See Art. 11 of the preliminary draft, the observations of the various countries on that article (DocumentsE/CN.7/1987/2Add. l and 2), and the subsequent reformulation in the revised text which avoids any specific reference to sanctions (Art. 11).

(82) See Art. 9 of preliminary draft and revised text.