Organic Law 8/2022: Criminal Organisations (Art. 570 bis CP)

Organic Law 8/2022, of 27 July (Official State Gazette ref. BOE-A-2022-12644), amended Articles 570 bis and 599 of the Criminal Code with a stated aim: to toughen the criminal response to organised crime with a transnational dimension. As criminal defence lawyers, in this article we explain what the reform changed, its practical scope and, above all, the lines of defence it opens and closes for a person investigated or charged with membership of a criminal organisation.

What the Reform Changed, and Why

Organised crime long ago ceased to be a purely local phenomenon. Structures dedicated to drug trafficking, human trafficking, money laundering or large-scale fraud increasingly operate across several States, distributing links in the criminal chain across different countries to hinder prosecution. Organic Law 8/2022 responds to that reality and to the commitments assumed by Spain within the European and international framework for combating organised crime.

The legislator starts from the idea that the dangerousness of an organisation is not measured solely by the specific offence it carries out, but by its structural capacity: its permanence over time, the coordinated division of functions and its cross-border reach, which multiply the harm and the difficulty of investigation. That is why the reform focuses on Article 570 bis CP, which criminalizes membership of a criminal organisation, and adjusts Article 599 CP, located among the offences of treason and against the peace or independence of the State, to round off the system of response to the most serious threats.

You can review the full set of recent legislative changes in our criminal law reforms section, which systematizes the main amendments to the Criminal Code.

The Articles Affected and Their Practical Scope

The reform focuses on two provisions with distinct functions within the Criminal Code:

• Article 570 bis CP — Criminal organisation. This is the core provision. It punishes those who promote, set up, organise, coordinate or direct a criminal organisation, as well as those who actively participate in it, form part of it or cooperate financially or in any other way. Organic Law 8/2022 reinforces the criminal response to these structures, with particular attention to those with a transnational reach, which present the greatest capacity for harm and for evading justice.
• Article 599 CP. Located in the Title dealing with offences of treason and against the peace or independence of the State, it was adjusted by the reform to coordinate the legal system's response to the most serious conduct against the essential interests of the State.

In practical terms, the decisive point is that Article 570 bis CP punishes membership in itself, irrespective of the specific offences the organisation may go on to commit. This is what is known as an offence of danger targeting the structure: the law brings forward the line of protection because it considers that the mere existence of a stable criminal organisation already represents a qualified risk. For that reason a person may be investigated under Article 570 bis CP in addition to the target offence (for example, drug trafficking or money laundering), with both penalties being added in accordance with the rules on concurrence of offences.

Organisation, Group and Simple Co-offending: The Decisive Boundary

This is the central issue in any defence against a charge under Article 570 bis CP. The Criminal Code distinguishes three levels of joint action, with very different criminal consequences:

• Criminal organisation (Art. 570 bis CP): a grouping of more than two persons that is stable or for an indefinite period and which, in a concerted and coordinated manner, divides various tasks or functions in order to commit offences. The key features are permanence, structural stability and the division of functions.
• Criminal group (Art. 570 ter CP): a union of more than two persons that, without having all the characteristics of an organisation (in particular, without that stable structure and formalized division of tasks), has the purpose of the concerted commission of offences. It is an intermediate figure and, generally, carries lower penalties.
• Simple co-offending: several persons who commit an offence by common agreement on a one-off and occasional basis, with no vocation of permanence or structure. This constitutes neither an organisation nor a criminal group: each person answers as a co-author or participant in the specific offence, without the additional penalty of Chapter VI of Title XXII.

The distinction is not merely theoretical. Whether a court classifies the same facts as an organisation, a group or simple co-offending substantially alters the penalty and the procedural position of the person under investigation. That is why the defence must work, from the outset, to establish the absence of the structural elements of an organisation.

The Transnational Factor

The heart of Organic Law 8/2022 is the reinforcement of the response to transnational organised crime. The international reach of a structure aggravates its dangerousness for several reasons: it disperses evidence across different countries, complicates judicial cooperation, hinders the traceability of financial flows and allows those responsible to shield themselves in uncooperative jurisdictions.

For the person under investigation this has significant practical consequences. Investigations into transnational criminal organisations are usually based on letters rogatory, joint investigation teams, European arrest warrants and international cooperation measures. Each of these instruments must comply with strict formal and substantive requirements. Evidence obtained abroad without the required safeguards, or an interception of communications without proper authorization and reasoning, may be challenged and, where appropriate, excluded from the body of evidence.

What It Means Today for Investigated Persons, Defendants and Victims

For someone being investigated or charged, an accusation under Article 570 bis CP is usually accompanied by severe precautionary measures: searches, telephone and electronic interceptions, freezing of accounts, seizures and, frequently, an application for pre-trial detention, justified by the risk of flight and destruction of evidence associated with these structures. Understanding from the outset the exact scope of the accusation and the role attributed to each person investigated (leader, active participant, mere collaborator) is essential to building the strategy.

For the victim, the organised dimension of the offence strengthens their procedural position: they may appear as a private prosecution, request protective measures and claim the civil liability arising from the offence. In transnational structures, mechanisms for locating and recovering assets also take on particular importance.

It is worth bearing in mind that the criminal organisation offence is not limited to those who physically carry out the acts. The law reaches those who coordinate, finance or provide a stable infrastructure to the structure: premises, shell companies, vehicles, accounts or documentation. For that reason it is common for an investigation to extend to persons who, on the face of it, occupy a peripheral position. Rigorously determining whether each person's contribution was occasional or whether it reveals stable integration into the organisation is, very often, the true subject of the procedural debate.

Lines of Defence

Against a charge of membership of a criminal organisation, the defence may be built, among others, around the following lines:

• Reclassification as a criminal group or co-offending: establishing the absence of stability, permanence or a structured division of functions in order to exclude the organisation of Art. 570 bis CP and, where appropriate, recharacterize the facts under Art. 570 ter CP or as simple co-authorship.
• Defining the specific role: distinguishing between those who direct or organise and those who merely participate or cooperate on a one-off basis, avoiding attributing to a participant the role and penalty of a leader.
• Absence of membership: demonstrating that the relationship with members of the structure was occasional, unrelated to the criminal purpose or limited to a specific act, without stable integration into the organisation.
• Challenging the evidence: reviewing the lawfulness and reasoning of searches, interceptions of communications and procedural steps carried out, especially those of international cooperation, to filter out evidence obtained without safeguards.
• Rules on concurrence and proportionality: ensuring that the penalty for the organisation offence is not improperly added to that of the target offence beyond what the rules on concurrence allow, and checking the limitation periods.
• Mitigating factors: assessing the existence of circumstances such as cooperation with the investigation (Art. 21.4 CP) or repair of the harm (Art. 21.5 CP) where applicable.

Conclusion

Organic Law 8/2022 confirms a clear trend on the part of the legislator: treating organised crime as a structural threat, especially when it operates beyond borders. For the defence, this reinforces the importance of rigorous technical work from the very first procedural step: precisely delimiting the applicable figure (organisation, group or co-offending), defining the role of each person investigated and carefully scrutinizing the regularity of the evidence, in particular evidence of international origin. The boundary between Article 570 bis CP and the less serious figures is not a nuance: it is, frequently, the difference between one penalty and another.