Crimes against Public Health: definition, regulation and types (2023)

LosCrimes against public healthare those that when committedcause damage to public healthand, consequently, negatively affect the general well-being.

Where are crimes against public health regulated?

The mention of how important it is to protect public health appears in article 43 of the Spanish Constitution:

1. The right to health protection is recognized.

2. It is the responsibility of the public powers to organize and protect public health through preventive measures and the necessary benefits and services. The law will establish the rights and duties of everyone in this regard.

Article 43 of the Spanish Constitution

If we want to know the regulation of crimes against public health, we mustgo toPenal Code, Title XVII (crimes against collective security), Chapter III (crimes against public health), articles 359 to 378.

What is the legal right protected in a crime against public health?

The criminal legislator intends to classify thesecrimes(helegal good), esprotect the general well-being and health of the community. However, this also ensures the individual health of each citizen.

In this type of crime, it is very important to limit the damage that is produced to health itself, since it is a nuance that can change the entire process. What we want to refer to is that if, once the crime has been delimited, the supposed damage that is produced is not serious, we could be talking about an administrative sanction, without the procedure having to be judged in criminal proceedings, which is always a lot more harmful.

Arturo Gonzalez, criminal lawyer and founding partner ofDexia Lawyers

What types of crimes against public health exist?

According to the interpretationsjurisprudential, they can be distinguishedfrom different groupsof illicit actions against public health:

• Crimes against public healthtrade related(articles359a367of the Penal Code):
  • Manufacture of substances that are harmful to health or chemical products that can cause havoc.
  • Manufacture of medicines or health products without authorization.
  • Distribution of drugs without authorization.
  • Elaboration of false documents related to medicines or health products.
  • Sports doping.
  • fraudfood
• Crimes against public healthrelated to thedrug trafficking(articles368a378of the Penal Code):
  • Drug trafficking.
  • Trafficking of drug precursors.
  • Preparatory acts andrecidivismInternational.

Contrary to what is incorrectly thought, in Spainbehaviors related to the spread of diseases and epidemics are not classified as crimes against public health. Other Spanish-speaking countries do consider this criminal conduct, such asMexico,Colombia,ArgentinaoPeru.

Trade-related crimes against public health

Manufacture of substances that are harmful to health or chemical products that can cause havoc

Whoever, without being duly authorized, produces substances that are harmful to health or chemical products that can cause havoc, or dispatches or supplies them, or trades in them, will be punished with imprisonment from six months to three years and a fine of six to twelve months, and special disqualification for profession or industry for a period of six months to two years.

Article 359 of the Penal Code

Whoever, being authorized to traffic the substances or products referred to in the previous article, dispatches or supplies them without complying with the formalities provided for in the respective Laws and Regulations, will be punished with a fine of six to twelve months. and disqualification for the profession or trade from six months to two years.

Article 360 ​​of the Penal Code

Manufacture of medicines or health products without authorization

Whoever manufactures, imports, exports, supplies, brokers, markets, offers or puts on the market, or stores for these purposes, medicines, including those for human and veterinary use, as well as investigational medicines, which lack the necessary authorization required by law, or medical devices that do not have the compliance documents required by the general provisions, or that are deteriorated, expired or fail to comply with the technical requirements relating to their composition, stability and efficacy, and thereby generate a risk to the life or health of people, will be punished with a prison sentence of six months to three years, a fine of six to twelve months and special disqualification for profession or trade from six months to three years.

Article 361 of the Penal Code

Distribution of drugs without authorization

1. It will be punished with a prison sentence of six months to four years, a fine of six to eighteen months and special disqualification for profession or trade of one to three years, whoever elaborates or produces,

a) a medicine, including those for human and veterinary use, as well as investigational medicines; or an active substance or an excipient of said medicinal product;

b) a medical device, as well as the accessories, elements or materials that are essential for its integrity;

so that the following is misleadingly presented: its identity, including, where appropriate, the packaging and labeling, the expiration date, the name or composition of any of its components, or, where appropriate, the dosage thereof; its origin, including the manufacturer, the country of manufacture, the country of origin and the holder of the marketing authorization or of the documents of conformity; data related to compliance with legal requirements or demands, licences, documents of conformity or authorizations; or its history, including the records and documents related to the distribution channels used, provided that they were intended for public consumption or use by third parties, and generate a risk to the life or health of people.

2. The same penalties will be imposed on whoever alters, when manufacturing or preparing it or at a later time, the quantity, dose, expiration date or genuine composition, as authorized or declared, of any of the medicines, substances, excipients, medical devices, accessories, elements or materials mentioned in the previous section, in a way that reduces their safety, efficacy or quality, generating a risk to the life or health of people.

Article 362 of the Penal Code

Shall be punished with a prison sentence of six months to four years, a fine of six to eighteen months and special disqualification for profession or trade from one to three years, whoever, with knowledge of its falsification or alteration, imports, exports, announces or advertise, offer, exhibit, sell, facilitate, expend, dispatch, package, supply, including brokering, traffic, distribute or put on the market, any of the medicines, active substances, excipients, medical devices, accessories, elements or materials referred to in the previous article, and thereby generate a risk to the life or health of people.

The same penalties will be imposed on whoever acquires them or has them on deposit for the purpose of using them for public consumption, for use by third parties or for any other use that may affect public health.

Article 362 bis of the Penal Code

Preparation of false documents related to medicines or health products

Whoever prepares any false document or document with a mendacious content referring to any of the medicines, active substances, excipients, medical devices, accessories, elements or materials referred to in section 1 of article 362, including its packaging, labeling and method of use , to commit or facilitate the commission of one of the crimes of article 362, will be punished with a penalty of six months to two years in prison, a fine of six to twelve months and special disqualification for profession or trade from six months to two years.

Article 362 ter of the Penal Code

sports doping

1. Those who, without therapeutic justification, prescribe, provide, dispense, supply, administer, offer or facilitate non-competitive federated athletes, non-federated athletes who practice sports for recreation, or athletes who participate in competitions organized in Spain by sports entities , substances or prohibited pharmacological groups, as well as non-regulatory methods, intended to increase their physical capacities or to modify the results of the competitions, which due to their content, reiteration of ingestion or other concurrent circumstances, endanger the life or health of the same will be punished with prison terms of six months to two years, a fine of six to eighteen months and special disqualification for employment or public office, profession or trade, from two to five years.

[...]

Article 362 quinquies of the Penal Code

food fraud

Producers, distributors or merchants who endanger the health of the consumers:

1. Offering in the market food products with omission or alteration of the requirements established in the laws or regulations on expiration or composition.

2. Manufacturing or selling beverages or foodstuffs intended for public consumption and harmful to health.

3. Trafficking in corrupted genres.

4. Elaborating products whose use is not authorized and is harmful to health, or trading with them.

5. Hiding or removing items intended to be rendered useless or disinfected, in order to trade with them.

Article 363 of the Penal Code

1. Whoever adulterates food, substances or beverages intended for food trade with additives or other unauthorized agents likely to cause harm to people's health, will be punished with the penalties of the previous article. If the defendant were the owner or the person in charge of production of a food product factory, he will also be imposed a penalty of special disqualification for profession, trade, industry or commerce of six to ten years.

2. The same penalty will be imposed on anyone who performs any of the following conducts:

1st Administer to animals whose meat or products are intended for human consumption substances that are not allowed that create a risk to the health of people, or in higher doses or for purposes other than those authorized.

2nd Sacrifice animals for sale or use their products for human consumption, knowing that the substances mentioned in the previous number have been administered to them.

3rd Sacrifice animals for supply to which therapeutic treatments have been applied using substances referred to in section 1.

4th Dispatch for public consumption the meat or products of the animals for supply without respecting the waiting periods, if applicable, provided for in the regulations.

Article 364 of the Penal Code

Anyone who poisons or adulterates with infectious substances, or others that may be seriously harmful to health, drinking water or food substances intended for public use or consumption by a community of people, will be punished with a prison sentence of two to six years. people.

Article 365 of the Penal Code

Crimes against public health related to drug trafficking

drug trafficking

Those who carry out acts of cultivation, elaboration or trafficking, or in any other way promote, favor or facilitate the illegal consumption of toxic drugs, narcotics or psychotropic substances, or possess them for those purposes, will be punished with prison sentences of three to six years and a fine from as much to three times the value of the drug that is the object of the crime in the case of substances or products that cause serious damage to health, and imprisonment from one to three years and a fine from as much to double in the other cases.

[...]

Article 368 of the Penal Code

Trafficking of drug precursors

1. Anyone who manufactures, transports, distributes, trades or has in their possession equipment, materials or substances listed in table I and table II of the United Nations Convention, made in Vienna on December 20, 1988, on illicit traffic of narcotic drugs and psychotropic substances, and any other products added to the same Agreement or that are included in other future Agreements of the same nature, ratified by Spain, knowing that they are going to be used in the illicit cultivation, production or manufacture of drugs toxic, narcotic or psychotropic substances, or for these purposes, will be punished with a prison sentence of three to six years and a fine of up to triple the value of the goods or effects.

[...]

Article 371 of the Penal Code

Who can commit a crime against public health?

Generally, any subject could commit a crime against public health.

However, the illegal acts established between articles 359 and 366 can only be carried outby those who dedicate themselves to the activities mentioned in the criminal offenses(pharmacists, merchants, or laboratory directors, for example).

How will a prisoner for attacking public health make the payments?

Pursuant to article 378 of the Penal Code:

Payments made by the offender for one or more of the crimes referred to in articles 361 to 372 will be charged in the following order:

1st To repair the damage caused and compensation for damages.

2.º To the indemnity of the State for the amount of the expenses that have been made on their behalf in the cause.

3rd To the fine.

4th To the costs of the private or private accuser when its payment is imposed in the sentence.

5th To the other procedural costs, including those of the defendant's defense, without preference among the interested parties.

Article 378 of the Penal Code