On the Attempt in Drug Trafficking Crimes


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The attempt in the drug trafficking offenses These are very particular considerations about the development of this crime. Taking into account everything that the Penal Code establishes about the progress of these cases in a general way.

Starting from the STS 218/2021 of March 11, is objectively appreciated 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 about it.

Main criterion of the attempt in the crimes of drug trafficking

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

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Imperfect forms in the execution of the crime

It is a possibility that fully enters as imperfect form during the execution of the crime of drug trafficking. Taking into account that it is admitted by the Room under a highly restrictive criteria 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 this must be added the circumstances of all action that involves bringing the drug closer to the consumer. Where subsumed in other general verbs such as "encourage", "facilitate" or "promote" the consumption of illegal substances is not related.

On the Attempt in Drug Trafficking Crimes
About the attempt in the crimes Drug Trafficking

General appreciations on the attempt in drug trafficking crimes

Other general appreciations about the attempt in the drug trafficking offenses. 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 shape It is understood the admission of criminal imperfection within the assumptions of the crime of drug trafficking. This is attributed to the acquiring individual.

It is assumed that the acquirer did not have immediate possession, mediate or under certain availability of the illicit substance. Complying with the crime when the sale of the drug is attempted but cannot be carried out effectively.

Existence of the crime

The existence of the crime is fulfilled when any perpetrator of this illegal practice executes the mechanisms to transport the drug. Being another involved the receiver who had previously agreed to his purchase.

This starts the execution through the realization of a plan by the co-authors. These are generally strangers and usually agree to acquire possession of the drugs to carry out a common plan. 

Overappreciation of the attempt

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

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

Final appreciation on the attempt in drug trafficking crimes

There is one last consideration provided through the sentences that give rise to a new appreciation. It is defined as follows:

Alternative means of transport

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

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

Under the above premises, the defendant will declare himself the author of a consummated crime for mediate 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 drug would be subject to the will of the recipients.

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

What is attempt in drug trafficking crimes?

Article 16 of the Penal Code defines what refers to attempted drug trafficking offenses.

It is established that there 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, said result does not occur due to causes beyond or independent of the will of the author.

Within the attempt, the author would begin to carry out the type, specifically and by external facts without reaching consummation. This is how the Penal Code contains the norm of general incrimination of the attempt.

attempt requirements

  • objective requirement: step from the preparatory phase to the implementation 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 the consummation by exercising his will.

Determining factors for a crime in the execution phase

The determinants are highly relevant to determine when a crime was in the execution phase. Remembering that under this condition is that the considerations of the attempt are developed:

  • Existence of univocity: external acts are decisive for the act 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 unequivocal action and with spatio-temporal proximity entails in its natural development the act of consummation. This means that if such an action continues, the crime would be consummated in the same way.


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