The resolution recently issued by the Examining Court number 1 of Murcia, dismissing the accusations that weighed on a neighbor of Javalí Nuevo for an alleged crime of tobacco smuggling, compromises the fight that from the security forces and bodies, and particularly from Vigilancia Customs, has been developing for years for criminal repression of the sale of this product outside the legal market. The head of the court, Ana Isabel Navarro Prieto, considers in her car that the apprehension of some 300 kilos of tobacco leaf and an electric shredder, carried out last October in a garage in the aforementioned Murcian district, does not in itself mean the commission of a crime of smuggling, for which the proceedings are provisionally archived.
“A blank criminal norm”
Thus, the dismissal is derived from the triumph of the thesis defended by José Neftalí Nicolás, the suspect’s lawyer, who in a brief of allegations highlighted that the crime of smuggling extends, in addition to other conducts, to production, acquisition or distribution of “tobacco products.” Regarding this concept, he stressed, “we are faced with a blank criminal norm”, since the Penal Code does not define what is considered such, while the specific legislation on smuggling states that the aforementioned “tasks” require “a industrial transformation of raw materials ”. In this way, the legal disquisition would consist of whether the tobacco leaves as such, in the way in which they were intervened in Javalí Nuevo by customs agents, is susceptible or not to be smoked without previously subjecting it to industrial handling. If the answer is positive, it could be considered that there is contraband, while if such consumption were not possible there would be no crime.
Customs Surveillance agents seized the cargo in a garage in Javalí Nuevo, last October
The lawyer José Neftalí Nicolás used a judgment of the Supreme Court of 2019, in which it was established that extending the consideration of crime for simple tobacco leaves would imply “an extensive interpretation” of the legal norm, which although it would be lawful for establishing administrative or tax sanctions would not make sense in the criminal field.
And he warned that this current legal gap can only be resolved by the legislator, through legal provisions that establish “in a well-defined way” whether or not the leaves of the Nicotiana plant should be considered “tobacco products.”
Faced with this legal argument, the magistrate, after consulting with the Public Ministry and verifying that it coincided with the defense criteria, has proceeded to file the proceedings.