C.31 - CASE OF THE SUITCASE

I. DegreeFrom the account of the proven facts it can be deduced as relevant that Manuel travelled from Venezuela to Spain with a suitcase in which, inside a double bottom, various packages were discovered containing a substance which turned out to be cocaine (a total of 1496.4 gr.), with a purity of 50.33%, from the sale of which for consumption could be extracted some sixteen million pesetas. He carried out the transport in return for payment. Manuel had been convicted four years earlier for drug trafficking.

Art. 368 PC: "Those who carry out acts of cultivation, processing or trafficking, or otherwise promote, encourage or facilitate the illegal consumption of toxic drugs, narcotic drugs or psychotropic substances, or possess them for those purposes, shall be punished...".

II.We are asked to analyse Manuel's criminal liability for this conduct. On the basis of these proven facts, the following can be affirmed:

II.1. Travelling by plane, carrying a suitcase, can only be understood as human conduct. It is unimaginable that in the absence of action (irresistible force...) a subject can present himself at an airport and travel. All this requires self-control at multiple points in time. The basic element of human conduct is therefore present.

II.2. We now consider whether such conduct is typical (subjectgoal) for the purposes of a drug trafficking offence. This is a dangerous subject(Art. 368 ff. PC) for the legal good "public health". This means that the conduct creates a series of factors which, although they do not harm a tangible and appreciable good, do subject it to a high probability of being affected. In crimes of endangerment, a distinction is usually made between those of mere activity ( abstract endangerment) and those of resultendangerment ( concrete endangerment). In this case, it is a crime of mere (abstract) dangerous activity: the legal essayrequires only carrying out a conduct, without also being required to submit to a high probability of affecting health, such as result. As such, the mere dangerous activity would fulfil the subjectgoal . Does his conduct create a typically relevant risk within the meaning of Art. 368? To the extent that the substance (cocaine) was intended for sale on the illegal market and subsequent consumption, it can be said that it does, as it would lack the necessary health controls to guarantee its medical use, being instead a use for the uncontrolled self-consumption of a multitude (almost 1.5 kg.) of consumers (sale price: sixteen million pesetas). The risk is therefore typical. It is not necessary to establish that this dangerous activity, as a typically relevant risk, is carried out on result, as the offence is one of mere activity (abstract danger). If these quantities of drugs are introduced into the uncontrolled market, they enter via distribution channels that will provide the drugs to consumers, whose health will be damaged by the possible consumption. However, it cannot be overlooked that they have not reached contactwith a plurality of consumers due to the intervention of a third party (the police) that interrupts the course of risk: it would be Degreeof attempt. However, the doctrine also argues that this crime is one of anticipated consummation (just read the multiple verbs that define the typical conduct in Art. 368), which means that it would have been consummated before reaching Spanish territory (in addition, it could be argued whether the quantity and quality of the drug increase the risk of affecting public health sufficiently to defend that the aggravated subjectof Art. 369.5.ª is also objectively realised). In conclusion, the conduct is in accordance with subjectgoal of the crime of drug trafficking.

According to art. 2.2.b) of LO 12/1995, of 12 December 1995, on the Repression of Smuggling: "Smuggling offences are committed by ... [those who] import, export ... of stagnant or prohibited goods...".

Moreover, this conduct may be typical for the purposes of another offence, smuggling, which is a mere activity offence (it does not require resultseparated in time and space from the conduct). Introducing these substances into Spanish territory, which is considered to begin at customs control, is already typical conduct. As this is a mere activity, it is sufficient to verify that the conduct belongs to the type of conduct that the smuggling subjectintends to prevent. If the introduction of such substances is expressly prohibited, it will be typical to present oneself at a customs control carrying them without authorisation. There is no reason to believe otherwise. Therefore, the conduct will also be typical for the purposes of the smuggling offence.

But let's see if it also carries out the subjectivesubject of such crimes. To do so, we have to argue the existence of intent. Specifically, we have to prove that he has represented the risk that his conduct entails for the legal good, i.e. the typically relevant risk. Specifically, the agent must represent the object of the offence, the course of risk and the circumstances that are relevant to the typical description. Thus, with regard to the object (drugs), we can say that Manuel knows that he is carrying drugs. It is not necessary to know what the drug is, the purity or composition of Degree, but it is enough to know that it is a narcotic substance that causes serious damage to health. We can infer that he knows about it from the various dataprovided in the proven facts: he is carrying in his suitcase several wrappers with a strange substance. The fact that he was previously convicted of a drug trafficking offence can be used to affirm that he knows something about the quality (appearance, colour, presentation...) of these substances. As for the risk to public health, we can infer that the double bottom of his suitcase, clearly manipulated, is evidence of trafficking without administrative controls; to this we can add the payment he receives for such transport (one million pesetas), which will obviously be only a part of the final sale price; so we infer that he knows that he is bringing into Spain prohibited substances that will be distributed to many consumers. As for the relevant circumstances, it can be deduced from his knowledge of the drug that he knows that he is carrying cocaine (a drug that causes serious damage to health); he knows that, because of the issuepackaging and the proportional price paid, many doses could be sold (a quantity of notorious importance). The fact that he does not know the exact quantity in grams is not as relevant as knowing that he is "carrying drugs" in sufficient quantity to distribute them to many consumers. From all these datawe infer that he has rules of experience that allow him to anticipate that his conduct would produce these effects for the legal good.

As for the intent necessary for the smuggling offence, it is sufficient that Manuel knows that he is entering Spanish customs territory with these substances. Given that he is travelling with a plane ticket, and that he has gone to the airport himself, with his own suitcase in which he is carrying the substance, it can be inferred that knowledgeis sufficient for the intent required by subjectfor the trafficking of substances across the border. There is intent for the crime of smuggling.

The subjectof drug trafficking also requires the presence of an additional subjective element: the "intended purpose of the trafficking" of such substances. From what dataof the proven facts can this be derived? If we take into account the remuneration for his transport (which, as any adult person of his quality can know, must be proportional to the profit that can be expected from his contribution), we can affirm that he knows that what he is transporting is destined for trafficking.

II.3. As regards the possible unlawfulness of his conduct, the lack of authorisation management assistant, allows us to affirm the unlawful nature of the conduct. Manuel's conduct is therefore typically unlawful.

II.4. There is no reason to doubt his guilt, not even on the grounds of ignorance of the prohibition of trafficking, since the way employee(clandestinity, manipulation of the suitcase) shows his knowledgethat he is trafficking in something prohibited. Manuel is therefore guilty of the typically unlawful conduct of drug trafficking and smuggling.

III.In conclusion, it can be said that Manuel's conduct fulfils, objectively and subjectively, the subjectof the crime of drug trafficking, conduct that is not justified, and for whose perpetrator there is no reason to exclude his guilt. He also carries out the subjectgoal and subjectively of the crime of smuggling prohibited substances, but this conduct is considered by jurisprudence to be included in the subjectof drug trafficking, as the subjectof the latter already includes that of the former: concurrence of rules, where the ruleof the crime of smuggling is displaced in favour of that of drug trafficking. Applying current legislation (and leaving aside questions of retroactivity of more beneficial precepts), the penalty will be increased (by virtue of the provisions of Art. 369.1.5.ª), as the quantity involved is of notorious importance: the prison sentence will be increased to the higher of Degree, and the fine will be four times the value of the drugs. The drugs must also be confiscated (arts. 127 and 374).

Cf., however, the provisions of art. 369.1.10.ª, until the reform by LO 5/2010, of 22 June.

Cf. C.21, C.22, and C.23.

Note how in C.31 the representation of risk by the agent accompanies the risk (reference letter) and while it exists (simultaneity). That is to say, the typically relevant risk and its representation are given as the two sides of a coin, simultaneously and referring one to the other. This is what is known as simultaneity and simultaneity. reference letterwhich are the guiding criteria in subjectof malice: in such a way that if there is something dangerous but, at the same time, not represented by the agent, it does not constitute conduct, even if it involves a risk. Thus, if the representation of the risk and the risk itself do not coincide or converge, we speak of a divergence between the risk realised and its representation by the subject. This is what is known as "incongruent" or divergent types, because representation (subjectsubjective) and risk (subjectgoal ) do not coincide.

Thus, whoever represents in advance that his conduct is going to be dangerous, but when the risk actually arises he is not representing it, would not be acting with malice (this is what was called dolus praecedens, which, as we have been explaining, is not malice). And conversely: whoever has taken a risk without knowing it and a posteriori thinks and accepts, even rejoices, that he has done so, is not acting with malice either (what is known as dolus subsequens, which is also not malice). Fraud, therefore, is simultaneous with the risk. If not, there is no malice, and it is not possible to be liable for what has been produced.

Moreover, as malice and risk must converge when referring to each other, we say of the cases of divergence that they constitute cases of error, of ignorance. Since the goaland the subjective do not coincide, the agent cannot be made managerresponsible for what has occurred. We will deal with all this in L.4 and L.5.

In C.31, the risk and its representation coincide in time and one refers to the other without any divergence. Moreover, it can be said that the creation of the risk (transport of concealed drugs) fully coincides with the agent's knowledgein this respect. There is no possibility of not knowing anything. It could even be said that the agent acts with the clear intention to traffic. Such a case could be classified as "direct intent of first Degree" or intention. But not all cases present such clear subjective situations. Let us see in C.32 how the agent's representation includes various effects, as necessary consequences of the action, but not directly known ("second direct intent Degree").