Article 570 bis Spanish Criminal Code: Criminal Organisation

Article 570 bis of the Spanish Criminal Code punishes the promotion, constitution, organisation, coordination or direction of a criminal organisation, and separately the active participation in one, with penalties that run in the gravest case from four to eight years. The definition it contains is what the defence works on: a criminal organisation is a group of more than two persons, of a stable character or for an indefinite period, which in a concerted and coordinated manner distributes tasks or functions in order to commit offences. The offence is punished in addition to the offences actually committed, which is why it appears in almost every indictment involving several accused.

Wording of Article 570 bis of the Spanish Criminal Code

Elements of the offence

1. More than two persons, so a group of three at least, of which the accused must be shown to be one.
2. Stability, or constitution for an indefinite period. A grouping formed for a single operation is a criminal group under article 570 ter, not an organisation.
3. A concerted and coordinated distribution of tasks or functions, which requires evidence of structure and hierarchy and not merely of joint participation.
4. The purpose of committing offences, and for the graver bracket, of committing serious offences within the meaning of the Code.

Defence strategy

Reclassification to a criminal group. This is the central argument. Article 570 ter punishes the criminal group, which requires neither stability nor a distribution of functions, with materially lower penalties. Where the evidence shows several persons acting together on one or two occasions, without a durable structure, without a hierarchy and without differentiated roles, the correct classification is the group and not the organisation. The defence maps what the evidence actually establishes about roles and duration, since prosecutors habitually infer an organisation from the number of accused.

Absence of structure and of a distribution of functions. Coordination among co-perpetrators is inherent in any joint offence and is not the coordination this article requires. The defence examines whether the file identifies who directed, who financed and who executed, whether those roles were fixed or interchangeable, and whether the accused had any function beyond the single act attributed to him. A person who drove a vehicle once, or who lent an account, is ordinarily an accomplice in the underlying offence rather than a member of an organisation.

The evidential basis of membership. Membership is frequently inferred from telephone contacts, from presence at a location or from a family relationship. None of those establishes participation in a structure. The defence tests the intercepted material for what it actually shows about the accused, examines whether the interceptions themselves were lawfully authorised under article 588 ter a, and identifies which conversations involve the accused as opposed to being attributed to him by inference.

Double punishment and the aggravating circumstances. Because this offence is punished in addition to the offences committed, the defence scrutinises whether the same conduct is being punished twice, in particular where the underlying offence already contains an aggravating circumstance for organised commission, as drug trafficking does in article 369 bis. It also contests each circumstance in the second paragraph separately, since the presence of two of them raises the penalty by a whole degree and they are habitually asserted without specific proof.

• Article 369: aggravated drug trafficking
• Article 588 ter a: interception of communications
• Spanish Criminal Code by article
• Spanish-language entry

This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.