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The police cannot fine for smoking (or having) hashish inside the car | My Rights | Economy

Police controls in the Plaza Francesc Macià in Barcelona.
Police controls in the Plaza Francesc Macià in Barcelona.GIANLUCA BATTISTA

The citizen security law in force since 2015, also known as the gag law, punishes with a fine of 601 to 30,000 euros the possession or consumption of drugs on the street or in public places or transport. But nothing says about possession or consumption inside the vehicle itself, even if the car is parked on public roads. This is the reason why a judge in Jaén has annulled a 601-euro fine imposed on a man who was caught with a 0.55-gram pot of cannabis resin or hashish in his car. The sentence, of March 4, 2022, annuls the sanction issued by the Subdelegation of the Government of the Andalusian city after the file opened to the alleged offender.

The ruling (the text of which can be consulted here), concludes that the apprehension of a certain amount of drug in a citizen’s car cannot be punished as an act of consumption or possession of narcotic drugs in public because it is not expressly contemplated in the Organic Law 4/2015 of March 30, 2015. Citizen Security Protection. And it is that, reasons, the judge, “in sanctioning matters both analogy and extensive interpretations against the defendant are prohibited.”

Specifically, the aforementioned rule punishes as a serious offense (in section 16 of its article 36) “the illicit consumption or possession of toxic drugs, narcotics or psychotropic substances, even if they were not intended for trafficking, in places, roads, public establishments or collective transport, as well as the abandonment of the instruments or other effects used for it in the aforementioned places. For the Andalusian judge, smoking or having hashish or marijuana in the vehicle itself is not illegal since the car cannot be considered a “public place”. Regardless of the fact that, due to the concurrence of other circumstances, it may lead to a criminal offense. And it is that, if the amount of drug seized is important or it is being trafficked or favoring consumption by third parties, it may be committing a crime against public health punishable by imprisonment and a fine in the Penal Code.

As explained by Begoña Valero, a lawyer at Legalion Abogados who defended the case: “the court understands that the private vehicle of a citizen cannot be understood as assimilated to a public place, especially when the norm is especially detailed with the places where it can be sanctioned”. As Valero points out, this is not the first time that a court has annulled a fine for this reason. This pronouncement is added to other resolutions of courts of Barcelona, ​​Albacete or Ourense in the same sense.

Table of illicit

The judgment of the Jaen court is based on the principle of typicity of administrative sanctions. This means that the law must clearly describe the illicit behavior whose violation can be fined. This is stated in the Law on the Legal Regime of the Public Sector when in its article 27 it states that “only violations of the legal system provided for as such violations by law constitute administrative infractions”. And, then, “only for the commission of administrative infractions may sanctions be imposed, which, in any case, will be limited by law.” Moreover, the precept ends, the regulatory provisions of development, cannot introduce new infractions, “nor alter the nature or the limits of those that the law contemplates.”

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It is, explains the magistrate, “a requirement of legal certainty”. That is, citizens must know with “absolute certainty” the legal consequences that a certain conduct may entail.

In the case of possession or consumption of drugs in public places or establishments, the citizen security law establishes three degrees of scope. At the minimum, the fine will be from 601 to 10,400 euros. The medium degree corresponds to a sanction of between 10,401 and 20,200 euros. And, the maximum degree supposes a fine of between 20,201 and 30,000 euros. The criteria that are taken into account to set the amount of the penalty are the entity of the risk produced for citizen security or public health, the amount of damage caused or the economic capacity of the offender, among others.

without breaking the law

The judge ends up agreeing with the sanctioned person because, according to this reasoning, he did not break the law. In these cases, it explains in the resolution, a “restrictive” criterion must be applied and, since the narcotic substance seized was inside the vehicle of his private vehicle, it did not violate the prohibition of consuming or having drugs in public places.

In addition, it adds, “the intervened amount of 0.55 grams (cannabis resin), is not considered an amount to be trafficked.” For all these reasons, he summarizes, “I consider that the case in question is not included in any of the cases provided for in the Organic Law for the Protection of Citizen Security, first because it is a small amount of cannabis, and second, because it is in the interior of a vehicle.

Unlike the Penal Code, explains the defense attorney, Begoña Valero, the citizen security law “sanctions situations that may lead to the breach of citizen peace.” What emerges from the sentence, she affirms, “is that in addition to being in the vehicle, the amount is negligible to pose a danger to citizen security.”

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