VERIFICATION OF THE SPECIAL SUBJECTIVE ELEMENT OF COMMERCIALIZATION IN THE CRIME OF TRAFFICKING, MANUFACTURE OR POSSESSION OF NARCOTICS IN THE COLOMBIAN CRIMINAL CODE

Abstract

The current article addresses the verification of the specific subjective aspect of commercialization in the crime of trafficking, production or possession of prohibited substances, as established in Article 376 of the Colombian Criminal Code. This study mixes a legal theoretical approach with a methodical review of the literature, using the PRISMA 2020 methodology, based on fourteen doctrinal and empirical investigations that are registered in Scopus and Web of Science between 2000 and 2025. From a normative perspective, Article 376 describes various main actions – introducing, carrying, storing, preserving, creating, selling, offering, acquiring, financing or providing – but recent jurisprudence has indicated that the existence of the crime requires an ulterior purpose of commercialization or trafficking, which has generated discussion about the compatibility of this interpretation with the principle of legality and the concept of closed criminality in Colombian criminal law. The findings of the review reveal a doctrinal agreement that holds that the intent to distribute or earn money adds a volitional component that separates punishable trafficking from simple possession or personal consumption. In addition, it is shown that the amount of the substance confiscated serves as a secondary indication, whose evaluation must be complemented with contextual factors and appropriate evidence.

It is concluded that the validation of the specific subjective aspect requires a comprehensive evaluation of the evidence, ensuring the presumption of innocence and preventing jurisprudence from assuming the responsibilities of the legislator. Finally, it is suggested that scientific production in the field of criminal law in the country be strengthened, establishing uniform criteria of proof that strengthen the coherence between legality, guilt and proportionality in drug-related crimes.