When Organised Drug Trafficking Falls to the National High Court in Spain

Establishing the competent court in a drug-trafficking case involving an organisation is not a secondary procedural step. It determines from the outset who conducts the investigation, which remedies are available, which chamber will hold the trial and, consequently, how the defence is structured. The Supreme Court, in appeal 8231/2023 (judgment of 25 March 2026), has set out the criteria that determine the jurisdiction of the National High Court (Audiencia Nacional) over provincial courts in these offences.

The two conditions that trigger National High Court jurisdiction

Article 369 bis of the Criminal Code (CP) increases the sentence where drug trafficking is committed within a criminal organisation or group. But the mere existence of an organisation is not, by itself, sufficient to attribute jurisdiction to the National High Court. The Supreme Court stresses that two elements must concur simultaneously:

• Organised group: the real existence of a criminal structure operating in a coordinated way to traffic narcotic or psychotropic substances.
• Territorial spread: the effects of the trafficking extend across the geographical area of several provincial courts — that is, the distribution of the drug reaches or is intended to reach different territorial jurisdictions.

The absence of either of these two elements excludes National High Court jurisdiction and assigns the case to the Provincial Court of the place where the offences occurred.

The decisive criterion: spread, not member mobility

A central aspect of the doctrine laid down by the Supreme Court is clarifying what must extend across several territories. It is not the residence or movements of the organisation's members that determines jurisdiction, but the spread of the effects of the trafficking: where the substance is distributed or intended to be distributed.

This distinction has significant practical consequences. An organisation whose members live or travel across different provinces, but whose distribution activity is concentrated in a single jurisdiction, does not trigger National High Court jurisdiction. The analysis must focus on the destination of the drug, not on the geography of the group.

How and when to raise a jurisdiction objection

The LECrim governs the channels for raising jurisdiction issues between courts. From a defence perspective, the moment of intervention is decisive: the earlier it is identified that a case may be under investigation by a court that lacks jurisdiction, the more effective the action can be.

If the National High Court assumes jurisdiction without the required conditions being met, the defence may challenge it through the procedural instruments provided by the LECrim. Conversely, if the case is being handled by a Provincial Court when it should fall to the National High Court, a jurisdiction challenge is equally available. In either case, correctly identifying the competent court is part of the initial analysis of any case with multiple defendants and an organisational element.

Implications of Article 369 bis CP for the defence strategy

Article 369 bis CP establishes a significant increase in penalties where drug trafficking is committed within a criminal organisation. The characterisation of the conduct as membership of a criminal organisation therefore affects not only jurisdiction but directly the charge and the applicable sentencing range.

Effective technical defence in these cases requires analysing whether the structure under investigation genuinely meets the elements that the Criminal Code requires for the aggravated type to apply: not every plurality of persons acting in a coordinated way constitutes an organisation in the criminal-law sense. The Supreme Court's case law on this point is extensive and, in many cases, allows the aggravated characterisation to be challenged.

Practical value of the case law

The Supreme Court judgment of 25 March 2026 offers a clear and applicable criterion that supports procedural decision-making in drug-trafficking cases with an organisational element. Its relevance is not limited to cases where the National High Court may have assumed jurisdiction improperly: it also guides cases where the defence considers that a matter should have been assigned to that court rather than to a Provincial Court.

In practice, early identification of the competent court allows the challenge strategy to be mapped more precisely, the available remedies to be assessed and the defence to be planned from the first investigative steps. Ignoring the jurisdiction issue or addressing it late can close off relevant procedural avenues that, had they been activated in time, would have better protected the rights of the suspect or accused.