Criminal Organization vs Group: Arts. 570 bis & ter CP
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listIn this article
lightbulbKey Takeaways
- check_circleOrganization (Art. 570 bis): stable structure, division of functions
- check_circleGroup (Art. 570 ter): residual category, lower penalties
- check_circleLeaders 4-8 years; members 2-5 years (serious crimes)
- check_circleAutonomous offence: real concurrence with the underlying crime
Quick answer
Article 570 bis of the Spanish Criminal Code (CP) punishes a criminal organization — a grouping of more than two people, stable and with a concerted division of functions to commit crimes — with four to eight years' imprisonment for promoters and leaders, and two to five years for members where serious offences are pursued. Article 570 ter CP punishes a criminal group, a looser association that lacks one or more of the features of an organization, with considerably lower penalties. The key difference is the stable structure and division of tasks: the defence typically aims to deny that permanence in order to downgrade the charge to a group or to plain co-perpetration.
Articles 570 bis and 570 ter of the Spanish Criminal Code (CP) punish, as autonomous offences, membership of a criminal organization or a criminal group. These are crimes against public order that are prosecuted independently of the offences the grouping actually commits, which in practice multiplies the penalties. As criminal defence lawyers in large organized-crime cases, we explain the difference between the two figures, the penalties by role and the defence strategies.
Criminal organization: the stable structure (Art. 570 bis CP)
The Code defines a criminal organization as a grouping of more than two people with a stable or indefinite character that, in a concerted and coordinated way, divides various tasks or functions in order to commit crimes. From that definition come its four essential features: plurality of people, temporal stability, a structured division of functions (hierarchy or specialization) and a criminal purpose. The presence of all of them is what distinguishes an organization from a group.
Criminal group: the residual category (Art. 570 ter CP)
A criminal group is the union of more than two people that, without meeting one or more of the features of an organization, has as its aim the concerted commission of crimes. The statute itself frames it as a residual category: where stability, a stable division of functions or a hierarchical structure is missing, but several people have agreed to commit crimes, we are dealing with a group, not an organization. The line between the two figures is a matter of degree and heavily disputed in each case, and a considerable difference in penalty hangs on it.
Key: structure and permanence
It is not enough that several people commit a crime together. An organization requires a stable structure with a division of functions; a group is something looser; and the merely joint, one-off execution of a crime is plain co-perpetration, with no autonomous offence of membership. The defence operates precisely along these seams.
Penalties by role and by the offence pursued
The penalties depend on two variables: the defendant's position within the structure and the seriousness of the offences the grouping pursues.
- Organization — promoters and leaders (Art. 570 bis.1): imprisonment of 4 to 8 years if the aim is serious crimes; 3 to 6 years otherwise.
- Organization — members and cooperators (Art. 570 bis.1): imprisonment of 2 to 5 years if the aim is serious crimes; 1 to 3 years otherwise.
- Group — setting up, financing or membership (Art. 570 ter.1): a scale running from 3 months to 1 year (less serious offences or the repeated commission of minor offences) up to 2 to 4 years where the aim is the most serious crimes of Art. 570 bis.3 (life, liberty, sexual integrity, human trafficking).
These penalties are imposed in their upper half (Art. 570 bis.2 and 570 ter.2) where the grouping is made up of a large number of people, has weapons or dangerous instruments, or has advanced technological means of communication or transport especially suited to committing crimes or securing impunity. Where two or more of those circumstances apply, the penalties may rise by one degree.
Concurrence with the underlying offence
Membership of the organization or group is an autonomous offence: it is punished in itself, regardless of the specific crimes committed (a drug shipment, a fraud, a money-laundering operation). It therefore operates in real concurrence with those underlying offences, and the penalties are added together. This accumulation is why sentences in large organized-crime cases can be very high. That said, the Code contains a rule to stop the same fact from being assessed twice; the defence must ensure that what is already covered by the membership offence is not also punished separately.
Defence strategies
A defence against a charge of criminal organization or group is usually built on the statutory definition of the offence itself:
- Deny the structure and the permanence: show that there was no hierarchy, no stable division of functions and no intent of continuity, in order to downgrade the organization to a criminal group (Art. 570 ter CP, with much lower penalties) or, better still, to plain co-perpetration of an isolated offence, which adds no autonomous membership offence.
- Challenge the client's membership: distinguish the stable member from the peripheral, occasional or fungible participant (for example, someone who provides an isolated contribution without knowing the overall structure).
- Lack of knowledge of the criminal purpose: show that the defendant believed they were taking part in a lawful activity and was unaware of the group's criminal aim.
- Nullity of the evidence: challenge the order authorizing the phone and communications taps, the usual basis of these cases; if it lacks objective grounds, the derived evidence falls with it by connection.
- Avoid double counting: monitor the concurrence with the underlying offence so that the same fact is not punished twice.
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Frequently asked questions
What is the difference between a criminal organization and a criminal group?expand_more
A criminal organization (Art. 570 bis CP) is a grouping of more than two people with a stable or indefinite character that, in a concerted and coordinated way, divides tasks or functions in order to commit crimes. A criminal group (Art. 570 ter CP) is a union of more than two people that aims to commit crimes but does NOT meet one or more of those features: it lacks stability, a stable division of functions or a hierarchical structure. In practice the key is permanence and internal organization; the group is the residual category and carries lower penalties.
What penalties does membership of a criminal organization carry?expand_more
It depends on the role and on the type of offence pursued. Those who promote, set up, organize, coordinate or lead the organization face four to eight years' imprisonment if its aim is serious crimes (three to six years otherwise). Those who actively take part, are members of it or cooperate with it face two to five years' imprisonment if the aim is serious crimes (one to three years otherwise). These penalties may be imposed in their upper half on account of aggravating factors such as a large number of people or the availability of weapons (Art. 570 bis.2 CP).
And the penalties for a criminal group?expand_more
Those for a criminal group (Art. 570 ter CP) are lower and are graded according to the offence pursued: they range from three months to one year's imprisonment (for one or more less serious offences, or the repeated commission of minor offences) up to two to four years' imprisonment where the group seeks to commit especially serious crimes against life, liberty or sexual integrity. They are also imposed in their upper half where the same aggravating circumstances apply (a large number of people, weapons, or advanced technological means).
Does the penalty for membership add to the penalty for the offence committed?expand_more
Yes. The offence of belonging to a criminal organization or group is an autonomous offence that protects public order, separate from the crimes the grouping commits (drug trafficking, fraud, money laundering, etc.). That is why the penalty for membership is added to that of those underlying offences under real concurrence, which can substantially increase the total sentence. The Criminal Code contains a rule to prevent the same fact from being counted twice, which the defence must invoke.
How do you defend someone accused of being part of a criminal organization?expand_more
The most common strategy is to deny the features that define an organization: showing there was no hierarchical structure, no stable division of functions and no intent of permanence, in order to re-characterize the conduct as a criminal group (Art. 570 ter CP, with much lower penalties) or as plain co-perpetration of an isolated offence. It is also common to challenge the defendant's stable membership against an isolated or peripheral role, the lack of knowledge of the group's criminal purpose and, very often, the nullity of the phone taps that usually form the basis of these large cases.
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