C.86b - Mula case

I. In these facts it is worth highlighting how a person arrives in Spain, coming from Bogotá, carrying capsules containing drugs (cocaine, 1,023 gr., with a wealth average of 83.4%, whose value on the market would have reached 17,021,758 pesetas) inside his body. He alleges a critical economic situation status in which he saw this conduct as the only option for him and his family to get by.

II. On these facts, and without modifying them, the following can be said about Adam's criminal liability.

II.1. As to whether Adam engages in human behaviour, it must be said that the account of events sample suggests the existence of self-control on his part, as is evident from the fact that a plane journey requires a multiplicity of choices and options. Moreover, in the prolonged nature of the events, there is nothing to suggest the three assumptions that exclude volition, such as irresistible force, reflex movements or unconsciousness. At final, we have to conclude that Adam carries out human behaviour. Let us now see whether they are typical.

II.2. If we focus only on the crime of drug trafficking (art. 368), and not on smuggling, it can be affirmed that their arrival in Spain carrying drug capsules is a causal factor for the legal good of public health. Moreover, it displays a sufficiently relevant risk within the meaning of the subject in question for the following reasons: On the one hand, the object is of a substance of those qualified as drugs that cause serious damage to health (art. 368.I); it refers to a quantity of a certain issue of grams (around one kg.) although only with a certain proportion of purity (83.4%); in addition to which we can argue that it is pre-ordered for trafficking through its entry into the illicit market of such substances, as is derived from the clandestinity, the division into capsules, the exact issue of 100, and the evaluation in possible sale price. All this leads us to affirm that the objective elements of subject of drug trafficking in art. 368.I. are fulfilled. If this crime is understood, as can be argued, as a mere dangerous activity (or crime of abstract danger), it would not be necessary to appreciate a further result beyond the conduct itself. On the other hand, there is nothing to cast doubt on the typical nature of the offence, for example, by having an authorisation for such trafficking, except for the possible justification of the conduct, which will be dealt with in II.4. Let us now consider whether his conduct is also subjectively typical.

II.3. With regard to the subjective nature of Adam's conduct, we can affirm that he has acquired rules of experience on the objective elements of subject which we have already mentioned in II.2: both on the drug, and on the transport and entrance in Spanish territory, as well as on the organisation of the drug for trafficking. Furthermore, it is clear that an adult of his circumstances cannot be unaware that he is carrying in his body such a quantity of drug capsules, which have to be introduced, and this requires a skill and continuity that does not occur by mistake. In addition, the clandestine nature of the drug shows a certain knowledge of the action of trafficking and the intended purpose of sale.

II.4 . As for whether his conduct is unlawful, we have stated that the subject goal of art. 368 is fulfilled, but this requires a detailed and more in-depth analysis, as to whether there is a cause of justification. Specifically, in the absence of an unlawful aggression, I ask myself whether in this case there is a state of necessity certificate, and also an aggressive one, because the evil that threatens comes from risks to life (not natural, but not from someone's unlawful conduct either). This requires: i) the existence of a crisis status which cannot be avoided in any other way, which in this case seems to be lacking. Indeed, although there is status of crisis (we are told how he was going through a "distressing familystatus ", "as the vehicle he used as a livelihood had been disabled, as he is a taxi driver and had suffered a traffic accident", his "family ... lacked all subject of assets, so it was the only way out for him as he felt the obligation he had as head of the family"), it is no less certain that there are alternative means and resources before turning to committing a crime. Even if we take into account the difficult circumstances of his country, where it may be difficult to survive staff and family in these circumstances, the crisis admits other less harmful ways to be averted or avoided. In the absence of this essential requirement, it is no longer necessary to refer to the others. However, the status staff and family can affect guilt, as we shall now see (II.5).

II.5 . With regard to Adam's guilt, it is not possible to doubt his imputability, as he is a subject with a certain normal capacity to perceive the rules, nor is it possible to suggest that he is aware of the specific rule prohibiting drug trafficking (its clandestinity...). It could be asked whether his status of scarcity made him feel a fear of such intensity that it would cancel out his ability to follow the rule (voluntariness). It cannot be ruled out, and I think that this could affect the normal motivational normality by rules, his freedom to follow the perceived rule , although without overriding it. I understand that his guilt may have been diminished by the context of fear provoked by the scarcity in which he is forced to live. But it is not an exonerating circumstance, due to its lesser relevance.

II.6 . Having reached the punishability of his conduct, I understand that it is possible to mitigate liability in some way, in order to take into account the status in which he finds himself in terms of his motivation. Specifically, Art. 368 provides for a mitigation of the penalty for minor cases or for "personal circumstances of the offender" (Art. 368.II). Thus, I think that there are indeed grounds for reducing the sentence, but not because the conduct is justified or the offender is not guilty, but because of a relative reduction in culpability.

III. At final, Adam has to answer for the crime of drug trafficking, but with a penalty reduced by Degree, compared to the penalties subject: from three to six years' imprisonment, and a fine of three times the value of the drugs.