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

It is best to begin where the mistake usually is. Organic Law 8/2022, of 27 July, did not reform the Criminal Code: its official title in the Official State Gazette is "amending Articles 570 bis and 599 of Organic Law 6/1985, of 1 July, on the Judiciary". The offence of membership of a criminal organisation is Art. 570 bis CP, which comes from Organic Law 5/2010 and whose wording in force was given to it by Organic Law 1/2015. As criminal defence lawyers, in this article we separate the two and explain what Art. 570 bis CP punishes today, with what penalties, and the lines of defence it opens for a person investigated or charged.

What Organic Law 8/2022 actually amended, and why it is confused

The confusion has a simple explanation: the Criminal Code and the Judiciary Act each have an Article 570 bis and an Article 599. Organic Law 8/2022 amended the first sections of the two provisions of the Judiciary Act —the statute governing the organisation and governance of the Judiciary—, both located in its Book VIII. None of that is substantive criminal law.

The contrast with the Criminal Code becomes obvious as soon as its two same-numbered articles are read:

• Art. 570 bis CP criminalises the criminal organisation and has not been amended since Organic Law 1/2015, which merely removed the reference to faltas (petty offences) when Book III disappeared. Its content comes from Organic Law 5/2010.
• Art. 599 CP has nothing to do with organised crime: it sits in Title XXIII, among the offences of treason and against the peace or independence of the State, and aggravates the disclosure of secrets and information relating to National Defence where the offender knew the secret by reason of his post or gave it publicity. It retains its 1996 text.

In other words: there was no criminal-law reform of organised crime in 2022. Anyone looking for the amended text of Art. 570 bis CP will find the 2015 wording, and anyone citing Organic Law 8/2022 as a criminal statute will be citing a law on the governance of the Judiciary. You can review the legislative changes that did affect the Criminal Code in our criminal law reforms section.

Where Art. 570 bis CP comes from

The criminal organisation offence is relatively recent. It was introduced by Organic Law 5/2010, of 22 June, which created in one go the Chapter on criminal organisations and groups: Art. 570 bis (organisation), Art. 570 ter (group) and Art. 570 quáter (dissolution and ancillary consequences). Before that reform, joint action was dealt with through the specific aggravating circumstances of each offence and the rules on authorship and participation.

Organic Law 1/2015, of 30 March, made the only later adjustment: on abolishing Book III of the Criminal Code, it removed from the definition of criminal organisation the reference to "the repeated perpetration of faltas". Since 1 July 2015 the provision has not been touched again. This matters for the defence, because it means that all the case law since 2015 has been built on the text still in force today. You can read the full provision in the Penal Code.

What Art. 570 bis CP punishes, and with what penalties

The provision distinguishes two levels of involvement and assigns them different penalties:

• Those who promote, set up, organise, coordinate or direct a criminal organisation: four to eight years' imprisonment where its purpose or object is the commission of serious offences, and three to six years in other cases.
• Those who actively participate in the organisation, form part of it or cooperate financially or in any other way: two to five years' imprisonment where its purpose is the commission of serious offences, and one to three years in other cases.

The statute itself defines a criminal organisation as a grouping of more than two persons, stable or for an indefinite period, which in a concerted and coordinated manner divides various tasks or functions in order to commit offences.

The penalties are imposed in their upper half where the organisation is made up of a large number of persons, has weapons or dangerous instruments, or has advanced technological means of communication or transport particularly apt to facilitate the commission of the offences or the impunity of those responsible. Where two or more of those circumstances concur, the penalty is raised by one degree. The upper half also applies where the offences are against life or physical integrity, liberty, sexual freedom and indemnity, or human trafficking.

To this is added Art. 570 quáter CP: the court orders the dissolution of the organisation or group and, in addition to the penalty, imposes special disqualification from economic activities or legal transactions connected with its activity, for a period between six and twenty years longer than the custodial sentence imposed.

In practical terms, the decisive point is that Art. 570 bis CP punishes membership in itself, irrespective of the specific offences the organisation may go on to commit. The law brings forward the line of protection because it considers that the mere existence of a stable criminal structure already represents a qualified risk. For that reason a person may be investigated under Art. 570 bis CP in addition to the target offence —for example, drug trafficking or money laundering— 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, lacking one or more of the characteristics of an organisation, has as its purpose the concerted perpetration of offences. The penalties are appreciably lower and depend on the target offence: two to four years of imprisonment for one or more serious offences of those listed in Art. 570 bis.3, and one to three years for less serious ones; six months to two years where the purpose is to commit any other serious offence; and three months to one year for less serious offences outside the first category or for the repeated perpetration of minor offences.
• 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 Dimension and Evidence of Foreign Origin

Many criminal organisation cases today have an international reach, even though the Criminal Code contains no specific subtype on that ground: structures dedicated to drug trafficking, human trafficking, money laundering or large-scale fraud frequently spread the links of the chain across several countries. That dispersal does not aggravate the penalty by itself, but it shapes the investigation: it complicates judicial cooperation, hinders the traceability of financial flows and multiplies the procedural steps carried out outside Spain.

For the person under investigation this has significant practical consequences. Such cases are usually based on letters rogatory, joint investigation teams, European arrest warrants and other 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 authorisation 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, because the applicable sentencing range depends directly on that role.

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. Where the structure operates in several countries, 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, recharacterise 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 aggravating circumstances of section 2: examining whether the large number of persons, the availability of weapons or dangerous instruments or the advanced technological means truly concurred, since that determines whether the penalty falls in the upper half or is even raised by one degree.
• 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

The first check in any defence is also the most elementary: knowing which rule applies. In organised crime, that rule is Art. 570 bis CP as worded in 2015, not a 2022 reform that in fact affected the Judiciary Act. From there, the technical work consists of precisely delimiting the applicable figure —organisation, group or co-offending—, defining the role of each person investigated and carefully scrutinising the regularity of the evidence, in particular evidence of foreign 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.