On Attempts in Drug Trafficking Crimes

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The attempted drug trafficking crimes These are very particular considerations about the development of this crime. Taking into account everything established by the Penal Code about the progress of these cases in general.

Starting from the STS 218/2021 of March 11, it is appreciated objectively everything related to jurisprudence. An ideal starting point to take into account all the reflections and conceptions of the following criteria.

Do not hesitate to consult the following information to clarify all your doubts in this regard.

Main criterion for attempt in drug trafficking crimes

The Criminal Chamber of the Supreme Court has declared a number of sentences that allow us to study a series of guidelines. Which are divided into a large set of assessments through different sections, the main one being:

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Imperfect forms in the execution of the crime

It is a possibility that comes into play as imperfect form during the execution of the crime of drug trafficking. Taking into account that it is admitted by the Court under a high restrictive criterion during the evaluation of sentences.

It is understood that the case constitutes or falls into the category of abstract danger and of mere activity. Therefore, it is difficult to determine the non-execution of the result to be proposed.

This is related to the basic type of drug trafficking established in the art. 368 of the CP of 1995. From this point it is clarified that the mere possession of a toxic substance assumes that a crime is committed.

To the above must be added the circumstances of all action that involves bringing the drug closer to the consumer. Where subsuming oneself in other general verbs such as “favor”, “facilitate” or “promote” the consumption of illegal substances is not related.

On Attempts in Drug Trafficking Crimes
On Attempts in Drug Trafficking Crimes

General assessments on attempted drug trafficking crimes

Other general observations about the attempt at the drug trafficking crimes. Taking as a point of reference the continuity in the jurisprudence of the Criminal Chamber of the Supreme Court:

The crime is not carried out

As exceptional form It is understood as the admission of criminal imperfection within the assumptions of the crime of drug trafficking. This is what is attributed to the acquiring individual.

It is assumed that the acquirer did not have immediate possession, in the medium or under certain availability of the illicit substance. Committing the crime when the purchase and sale of drugs is attempted but cannot be carried out effectively.

Existence of the crime

The existence of the crime is fulfilled when any author of this illegal practice executes the mechanisms to transport the drug. Another person involved was the recipient who had previously agreed to purchase it.

The above starts the execution through the materialization of a plan by the co-authors. These are generally unknown and agree to acquire possession of narcotics normally to execute a common plan. 

There is no need to appreciate the attempt

This requires, under a preparation of jurisprudential doctrine, the non-participation in pre-transport operations. Therefore, having effective availability of the drug should not be involved.

It is the set of individuals who are involved in the crime but they are unrelated to the initial transportation procedures. Obviously through clearly differentiated activities.

Final assessment on attempted drug trafficking crimes

There is a final consideration provided through the sentences that give rise to a new assessment. It is defined as follows:

Alternatives in means of transportation

For scenarios when it comes to drug shipments by mail or different alternatives in transportation systems. All assumptions of a controlled delivery must also be included.

One speaks of a consolidated doctrine if the accused participates in the application or import operation practice. Including those scenarios where it appears as the final recipient of said operation.

Under the above premises, the accused will declare himself as the author of a crime consummated by indirect possession of narcotics.

With respect to drug shipments, is considered a crime within a prior agreement between all those involved. Regarding said agreement, it is established that the drugs would be subject to the will of the recipients.

Thus, the fact that a physical seizure of illegal substances does not materialize remains indifferent. Only with provide an address and recipient of sending, collaboration in facilitating the commission of the crime is implied.

What is attempt in drug trafficking crimes?

It is defined by article 16 of the Penal Code regarding attempted drug trafficking crimes.

It is established that there is attempt when the individual has initiated the commission of the crime through external events. Making practice of all the acts involved to produce the result of the crime.

However, this result does not occur due to causes beyond or independent of the author's will.

Within the attempt, the author would begin to realize the type, concretely and through external facts without reaching consummation. This is how the Penal Code contains the rule of general incrimination of attempt.

Attempt Requirements

  • Objective requirement: step from the preparatory phase to the execution phase, being necessary the partial or total execution of the facts. 
  • Subjective requirement: the individual must want to commit the crime. At the same time, there must be an absence of voluntary withdrawal, competent to the active subject.
  • Negative requirement: the author did not prevent consummation by exercising his will.

Determining factors for a crime in the execution phase

The determining factors are very relevant for determine when a crime was in the execution phase. Remembering that under this condition the considerations of the attempt are developed:

  • Existence of univocality: external acts are decisive for the action of committing a crime.
  • Space-time proximity: in reference to what should be assumed about the consummation of the crime. It will be included in the author's plans.
  • The univocal action and with space-time proximity entails in its natural development the act of consummation. This means that if such action continues, the crime would be completed in the same way.


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