There is no amount that separates use from the offence
Article 368 of the Criminal Code punishes cultivation, production, trafficking, and any conduct that promotes, encourages, or facilitates the illegal use of drugs, as well as possession for those purposes. For cannabis—a substance that case law does not consider to cause serious harm to health—the penalty is one to three years’ imprisonment and a fine of one to two times the value of the drug. The question almost everyone asks first—how many grams mark the boundary—does not have the answer that circulates online: the Supreme Court has repeatedly held that what matters is not the amount possessed, but its intended destination for trafficking, which is established through indicia. Exceeding a figure does not, by itself, lead to conviction, and falling below it does not acquit. That is why the gram tables found online are, at best, a dangerously misleading simplification.
Article 368 is the provision that generates the most enquiries in a cannabis-focused law firm—and also the most misunderstood. Its wording is deliberately broad, its interpretation depends on extensive and nuanced case law, and the information circulating online reduces it to a gram table that does not reflect how courts actually operate. In this guide we explain what the provision says, how use is distinguished from trafficking in practice, what aggravates and what mitigates the penalty, and what real scope for defence exists. With an initial warning: this article provides information; it does not replace the analysis of a specific case.
What Article 368 of the Criminal Code says exactly
The provision is included among offences against collective security, in the chapter devoted to offences against public health. Its current wording, following the reform introduced by Organic Law 1/2015, is as follows:
“Those who carry out acts of cultivation, production or trafficking, or otherwise promote, encourage or facilitate the illegal use of toxic drugs, narcotics or psychotropic substances, or possess them for those purposes, shall be punished with imprisonment from three to six years and a fine of one to three times the value of the drug that is the object of the offence if the substances or products cause serious harm to health, and with imprisonment from one to three years and a fine of one to two times in other cases.”
“Notwithstanding the provisions of the preceding paragraph, the courts may impose the penalty one degree lower than those indicated, having regard to the minor nature of the act and the personal circumstances of the offender. This discretion may not be used if any of the circumstances referred to in Articles 369 bis and 370 are present.”
Three elements of that wording explain almost all of the provision’s contentiousness. The first is its breadth: it does not punish only sale, but any conduct that promotes, encourages or facilitates another person’s use, which case law has interpreted broadly to include transport, storage, intermediation or financing. The second is the two-tier penalty scale depending on whether the substance causes serious harm to health—a legal, not chemical, classification developed by the Supreme Court, in which cannabis and its derivatives fall within the lower-penalty group. The third is that it punishes possession for the purposes of trafficking, and that is where the vast majority of proceedings are decided.
Article 368 does not punish use or possession for personal use. What it punishes is possession intended for trafficking. Almost the entire legal debate in proceedings for this offence revolves around a single question: is that intent established?
“What I see most, by far, is people who arrive convinced their case is resolved by a number. They have searched online, found a table, and think they are below or above a line. And the first thing I have to explain is that this line does not exist as they imagine it. I have seen acquittals with large amounts and convictions with very small amounts, and in both cases what decided the outcome was not the weight: it was the overall set of circumstances surrounding that person and what could be proven about them.”
The wrong question: “how many grams are a crime?”
It is the most repeated search about this provision and it deserves an honest answer, even if it is uncomfortable: the Criminal Code sets no amount. There is no legal threshold below which the conduct is non-criminal, nor above which it is automatically criminal. What exists are indicative criteria prepared by the National Institute of Toxicology on average doses of use, which courts use as one indicium among others, never as a decision rule.
The Supreme Court has reiterated this clearly in recent decisions: it is not the stockpiling of a substance that determines the application of the criminal offence, but its intended destination for trafficking. A defendant may argue that the amount carried was within what they considered personal-use limits and still be convicted if that intent is established by other means. Conversely, amounts above the indicative criteria may be attributed to personal use when the person’s status as a user is duly proven.
Why gram tables are misleading
A quantity table conveys a false sense of security and, moreover, reverses judicial reasoning. The court does not start from the weight to infer intent: it starts from the overall body of evidence—the manner of possession, the context of the police intervention, the defendant’s profile—and uses the quantity as one of the elements within that whole.
That is why we publish here the criteria that actually carry weight in court, not a number that protects no one. Anyone who bases their peace of mind on a figure found online often discovers too late that the figure was never part of the equation.
What courts actually assess
Establishing intent to traffic is built on indicia, and the defence is built by discrediting them or providing contrary indicia. In practice, these are the elements that appear again and again in judicial decisions:
- Substance divided into doses prepared for individual delivery
- Presence of distribution tools: precision scales, wrapping material, lists or notes
- Cash in small denominations without a coherent economic justification
- Prior police surveillance observing brief, repeated contacts
- Absence of any sign of personal use by the defendant
- Communications or messages with unequivocally transactional content
- Proven status as a habitual user through expert evidence, toxicology tests, or a treatment report
- Substance in a single portion, with no preparation for delivery
- Complete absence of tools, notes, or cash in small denominations
- Isolated intervention, with no prior surveillance or observed contacts
- Consistency between the quantity and the proven pattern of use
- No prior record and no other indication of distribution activity
None of these elements is decisive on its own. Courts assess the overall picture, which is why two cases with the same quantity can end in opposite outcomes. Proving user status is, in practice, the most relevant defensive step in lower-level proceedings, because it opens the door both to non-criminality and to mitigating factors and the mitigated subtype in the second paragraph.
“There is a pattern that repeats constantly and that almost nobody anticipates: the problem is usually not the substance; it is what was around it. A scale kept out of habit, small bags that were there for another reason, messages written carelessly. Once that material enters a police report, it stops being everyday and becomes indicium, and explaining it afterwards is far harder than if it had never been there. That is the difficult conversation I have almost every week.”
Shared personal use and why it is almost never applied
There is a case-law construction, consolidated by the Supreme Court’s Plenary Session of 5 February 1997, that excludes criminal liability when several users share a substance among themselves. This is the so-called doctrine of personal use or shared use, and it is the basis on which cannabis social clubs in Spain have historically relied, as we explain when comparing the Spanish model with German cultivation associations.
The problem is that its requirements are cumulative and very strict, and it is enough for one to fail for the conduct to fall back within Article 368:
Requirements under case law
- Prior habitual users. All participants must already be habitual users; it does not apply to someone initiating use.
- Small, closed, and defined group. Individuals must be identified and the group cannot remain open to third parties joining.
- Enclosed place. Use must take place in a space not accessible to the public, never in a public street.
- Small quantity and immediate use. Only what is necessary for use on that occasion, with no stockpiling or later distribution.
- Complete absence of consideration. Any payment, contribution linked to quantity, or economic benefit excludes the doctrine.
Case law has repeatedly emphasised the restrictive nature of this exception: it does not cover distribution to third parties outside the group or supply in public places. When applied to organised structures with hundreds of members, planned cultivation and periodic contributions, it no longer fits—and that is precisely why the Supreme Court has convicted those responsible for cannabis associations despite their associative legal form.
Cultivation: where most people cross the line without realising
Article 368 expressly mentions “acts of cultivation”, and that reference often causes confusion. Cultivating for personal use, in a private space and without impact on third parties, does not constitute an offence under established case law; what is punished is cultivation intended for trafficking, following the same logic that applies to possession.
In practice, the factors that shift cultivation from the non-criminal sphere to the criminal one are fairly recognisable: scale, when it clearly exceeds any plausible forecast of individual use; visibility or accessibility to third parties, which introduces the risk of dissemination that the provision seeks to prevent; and the existence of a distribution structure around the cultivation. It should also be added that, independently of criminal law, cultivation visible from the public street or in common-use areas may constitute a serious administrative offence under citizen security regulations, with a financial penalty and without any offence being required.
The penalty scale: from the mitigated subtype to aggravated offences
The specific penalty in proceedings under Article 368 is not read directly from the provision: it depends on the type of substance, the presence of specific aggravating factors, and the possible application of the mitigated subtype. This is the scale applicable to cannabis, which case law places among substances that do not cause serious harm to health:
Penalty one degree lower due to the minor nature of the act and the personal circumstances. This places the framework below one year, opening the possibility of suspension of the custodial sentence.
One to three years’ imprisonment and a fine of one to two times the value of the drug, for substances that do not cause serious harm to health.
Penalty one degree higher when a specific aggravating factor is present: a quantity of notable significance, distribution to minors, use of premises open to the public, membership of an organisation, or others.
Criminal organisation, extreme seriousness of the amount, use of vessels, or simulation of international trade operations. They expressly exclude application of the mitigated subtype.
The quantity of notable significance
This is the aggravating factor that most often turns a manageable case into a serious one. Its threshold is not in the statute: it was set by the Supreme Court’s Second Chamber in a Non-jurisdictional Plenary Session on 19 October 2001, using as a reference five hundred daily-use doses according to the National Institute of Toxicology report. The calculation is made on the substance reduced to purity, with an express exception for hashish and its derivatives.
| Cannabis derivative | Notable-significance threshold | Effect |
|---|---|---|
| Marijuana | 10 kilograms | Application of Article 369 and an increase of the penalty by one degree over the basic offence |
| Hashish | 2.5 kilograms | |
| Hashish oil | 300 grams |
These figures describe when a conviction is aggravated, not where the safe zone ends: below them, the conduct remains fully criminal if intent to traffic is established. Their practical usefulness is different, and defensive: in proceedings close to the threshold, analysis of the weighing, the degree of purity, and the expert margin of error may be decisive in excluding the aggravating factor.
“At this firm we do not publish case outcomes. We could—the competition does and it works commercially—but in criminal law it seems to me a double mistake: it creates expectations that no honest lawyer can guarantee and it comes close to the limits of what professional ethics allow in advertising. What I can say is where ground is really gained or lost, and it is almost always the same: expert evidence, traceability of the substance, and the detail of how the intervention was carried out. That is where I look first.”
The mitigated subtype under Article 368.2
The most relevant reduction route in practice
The second paragraph allows the court to impose the penalty one degree lower having regard to the minor nature of the act and the personal circumstances of the offender. Case law requires both elements to be present and proven: it is not enough to claim that the quantity was small.
Its practical relevance is enormous, because the reduction can place the penalty within a framework compatible with suspension of enforcement, which in many proceedings makes the difference between going to prison and not.
The Supreme Court has progressively clarified what falls within each of the two requirements. Minor nature is associated with a small quantity, the isolated or occasional character of the conduct, the absence of an organisational structure, and the defendant’s peripheral role within the operation. Personal circumstances refer to the absence of prior convictions, drug dependence as an explanatory context for the conduct, and proven situations of vulnerability or social exclusion.
On more than one occasion, the Chamber has corrected courts that rejected the mitigated subtype without properly assessing those personal circumstances, emphasising that it is not a discretionary concession but a proportionality requirement that must be applied when its conditions are met. That is why, in lower-level proceedings, a significant part of the defence work consists precisely in documenting those circumstances from the outset, not on the eve of trial.
- It does not apply if the circumstances in Articles 369 bis or 370 are present. The law itself expressly excludes it: criminal organisation or hyper-aggravating factors close off this route.
- A small quantity alone is not enough. Without proven personal circumstances, case law rejects its application.
- It is not established by assertions. Drug dependence, vulnerability, or user status require proof: expert evidence, treatment reports, social documentation.
If you are being investigated or accused of this offence
Proceedings under Article 368 are decided to a large extent in their initial stages, when the intervention is carried out, the substance is seized, and the first expert reports are prepared. What happens at that moment conditions everything that follows, and yet it is precisely when most people act without specialised assistance.
There are two things you should be clear about, and neither is a procedural trick: the right not to make a statement and to do so only in the presence of a lawyer are constitutional rights whose exercise harms no one, and assistance from the first procedural step allows you to intervene in the chain of custody and expert work while it is still possible. We set out the details of those first moments in what to do if you are detained with cannabis, and the preventive work for structures operating in this sector in criminal risk prevention.
“If I had to keep just one idea from all of this, it would be this: the moment when the most can be done for a case is the first one, and it is exactly when the fewest people call. When someone contacts me months later, with the police report closed and the expert report done, the margin has narrowed enormously. It is not always possible to avoid being late, but when you can choose, the difference is real and significant.”
Frequently asked questions about Article 368
How many grams of marijuana are considered a crime?
The Criminal Code sets no amount. There are indicative criteria from the National Institute of Toxicology on average doses of use that courts use as one indicium among others, but the Supreme Court has reiterated that what is decisive is not stockpiling but intent to traffic. That is why there can be conviction with small amounts and acquittal with larger amounts: it depends on the overall body of evidence, not a figure.
What is the penalty for cannabis trafficking in Spain?
Cannabis falls within substances that do not cause serious harm to health, so the basic offence provides for one to three years’ imprisonment and a fine of one to two times the value of the drug. That penalty may be reduced by one degree if the mitigated subtype in the second paragraph applies, or increased if a specific aggravating factor under Article 369 is present, such as a quantity of notable significance.
Is it a crime to grow marijuana at home?
Cultivation intended for personal use, in a private space and without impact on third parties, does not constitute an offence under established case law. What Article 368 punishes is cultivation intended for trafficking, assessed by reference to scale, accessibility to third parties, and the existence of a distribution structure. Independently of criminal law, cultivation visible from the public street may be sanctioned under citizen security regulations.
What is the quantity of notable significance?
It is a specific aggravating factor under Article 369 that increases the penalty by one degree. Its threshold was set by the Supreme Court’s Second Chamber in a Non-jurisdictional Plenary Session on 19 October 2001 based on five hundred daily-use doses. For cannabis derivatives it is set at 10 kilograms of marijuana, 2.5 kilograms of hashish, and 300 grams of hashish oil. It indicates when the penalty is aggravated, not where the offence ceases to exist.
What is the mitigated subtype under Article 368.2?
It is the power of the courts to impose the penalty one degree lower having regard to the minor nature of the act and the personal circumstances of the offender. It requires both elements to be present and proven. It cannot be applied if the circumstances in Articles 369 bis or 370 are present. Its practical relevance is that it can place the penalty within a framework compatible with suspension of enforcement.
How is it proven that the drug was for personal use?
Primarily by proving habitual user status and the consistency between that status and the seized quantity. The usual means are expert evidence of use, toxicology tests, and, where they exist, treatment or rehabilitation reports. Added to this is the absence of indicia pointing to distribution: division into doses, tools, notes, or small-denomination cash without justification.
Is shared use among friends a crime?
Case law excludes criminal liability when five requirements are met cumulatively: prior habitual users, a small and defined group, an enclosed place, a minimal quantity for immediate use, and complete absence of consideration. It is a restrictively applied exception: if any of those elements fails, the conduct falls back within Article 368.
Can imprisonment be avoided for an offence under Article 368?
It depends entirely on the case, and no serious professional can guarantee an outcome. What can be described is the mechanism: when the final sentence imposed does not exceed two years and the legal requirements are met, it is possible to request suspension of enforcement. Hence the practical importance of the mitigated subtype and mitigating factors, which can place the penalty within that framework.
What is the difference between an administrative sanction and this offence?
They are different spheres. Possession or use in public places constitutes a serious administrative offence punished by a financial penalty under citizen security regulations, without a criminal record. Article 368 belongs to criminal law and requires that the conduct be intended for trafficking. The same police intervention may lead to one route or the other depending on what is established.
When should you contact a lawyer?
As early as possible, and especially from the first procedural step. The elements that later prove decisive—the seizure of the substance, the chain of custody, the purity expert report, documentation of user status—are generated in the initial stages of the proceedings. Late assistance does not prevent a defence, but it reduces the room to act on those elements.
Article 368 is a broad provision, interpreted through extensive case law and applied case by case. Precisely for that reason, general information—including this article—helps you understand the framework, but never to assess a specific situation. If you are in one, the only truly useful step is for someone to examine the details: what was seized, how, in what circumstances, and what can be proven. That is where proceedings are decided, not by any number.
Sources and rules consulted
- Organic Law 10/1995, the Criminal Code, Articles 368 to 370, as currently worded following Organic Law 1/2015.
- Agreement of the Supreme Court’s Second Chamber Non-jurisdictional Plenary Session of 19 October 2001, on the quantity of notable significance.
- Agreement of the Supreme Court’s Second Chamber Non-jurisdictional Plenary Session of 5 February 1997, on shared personal use.
- Reports of the National Institute of Toxicology on minimum psychoactive doses and average doses of use.
- Case law of the Supreme Court’s Second Chamber on intent to traffic and application of the mitigated subtype under Article 368.2.
Are you being investigated or accused of an offence against public health?
Gabriela Sierra, a criminal defence lawyer specialising in cannabis law, analyses the intervention, expert evidence, and the circumstances of the case to design the defence strategy from the outset. Tell us about your situation with maximum confidentiality.
Defence for drug traffickingNotice: this article is for informational and educational purposes only, reflects the statutory and case-law framework in force on the date of publication (August 2026), and does not constitute legal advice nor replace the individual analysis of a specific case. None of the references contained in it allows the outcome of judicial proceedings to be anticipated. For your particular situation, contact Lawyer Sierra.