Criminal Organization Lawyers
Specialized defence in macro-cases before the National Court
A criminal organisation (Article 570 bis of the Spanish Criminal Code (CP)) is a stable grouping of more than two people with a concerted division of tasks for committing offences. Membership is punished independently of the specific offences committed: imprisonment of 4 to 8 years for promoters and leaders and 2 to 5 years for members, when serious offences are pursued. It is distinguished from a criminal group (Article 570 ter CP), which lacks a stable structure and carries lighter penalties, and extended confiscation (Article 127 bis CP) of disproportionate assets is available. At Alonso Sala we prove that the client's involvement was a one-off, independent act to disassociate them from the structure, seek reclassification to a criminal group, and challenge the wiretaps underpinning these mass-defendant cases.
Criminal Organization and Drug Trafficking: What the Prosecution Must Prove (Art. 570 bis CP)
Drug trafficking macro-cases represent the highest level of complexity in Spanish criminal law. When the Prosecution charges a client not only with drug trafficking (Art. 368 CP) but also with membership in a criminal organization (Art. 570 bis CP), the defence strategy must change radically.
The criminal organization offence was introduced in the 2010 Criminal Code reform and is an autonomous offence: it punishes mere membership in the organization, regardless of whether the crimes pursued by the organization have been committed or not.
Organization vs. Criminal Group: The Key to Defence
The distinction between criminal organization (Art. 570 bis) and criminal group (Art. 570 ter) is, in practice, the most important battle in these proceedings. The organization requires four cumulative elements: plurality of people, hierarchical or functional structure, temporal stability, and criminal purpose. The criminal group, in contrast, is a transient union without defined hierarchy.
Penalties by Role in the Organization
| Role | Article | Serious Crimes | Other Crimes |
|---|---|---|---|
| Promoter / Leader | Art. 570 bis.1 | 4 – 8 years | 3 – 6 years |
| Active Member | Art. 570 bis.1 | 2 – 5 years | 1 – 3 years |
| Criminal group: setting up, financing or joining | Art. 570 ter.1.b-c | 6m – 2 years | 3m – 1 year |
| Informant (Art. 376) | Art. 376 CP | Reduction of 1-2 degrees on applicable sentence | |
3 Defence Axes in Criminal Organization
Structural Disconnection
Prove the client was not part of the structure: no hierarchy, no regular communications, no meetings. Occasional participation is not membership.
Downgrading to Group
Argue the grouping lacked stable hierarchy and functional division. Without these elements: criminal group (Art. 570 ter) with much lower penalties.
Wiretap Nullity
Challenge the wiretap court order: lack of motivation, insufficient police data, mere generic suspicion. If wiretaps fall, all derived evidence falls.
Investigation Techniques and Challenges
Wiretaps (SITEL)
Integrated Telecommunications Interception System. Requires motivated court order. We challenge: lack of prior evidence, generic motivation, excessive extensions, absence of periodic judicial control.
EncroChat / SkyECC / Anom
Encrypted communication platforms infiltrated by European police. The Supreme Court, sitting in plenary, has admitted it as evidence (the failure to notify Spain only renders it inadmissible if it left the accused defenceless), so the defence must prove specific defects in each case.
Undercover Agents (Art. 282 bis)
Court-authorized police infiltration. Limit: the agent cannot provoke the offence (agent provocateur = entrapment, not punishable). Must be limited to observing and documenting existing activity.
Controlled Deliveries (Art. 263 bis)
Allowing drugs to circulate under police surveillance to destination. We challenge: lack of a reasoned decision by the competent judge, prosecutor or police commander (Art. 263 bis LECrim), loss of control during transit, chain of custody breaks.
Looking for a Criminal Organization Lawyer in Spain?
As criminal lawyers acting before the National Court, we offer high-complexity defence in drug trafficking and organised crime macro-cases.
Drug Crime Specializations
General Trafficking (Art. 368)
Defence in basic type: cultivation, production, or trafficking. Technical differentiation between substances causing serious harm and those that do not.
International Trafficking
Import/export, containers, and National Court jurisdiction. Transnational criminal law. Art. 370 CP.
Cannabis Cultivation
Self-consumption doctrine, indoor/outdoor plantations, electricity fraud, and home search nullity.
Cannabis Clubs
Legal defence of associations and clubs. Limits of shared consumption and Supreme Court doctrine.
Sports Doping
Criminal and disciplinary defence in sports doping. Art. 362 quinquies CP. Prohibited substances and anti-doping controls.
Drug Crimes in Spain: Defence Guide for Trafficking, Possession and Cannabis Clubs
Drug offences are among the most prosecuted crimes in Spain. Articles 368-378 of the Criminal Code distinguish between drugs that cause serious harm to health (cocaine, heroin, amphetamines) and those of lesser harm (cannabis, MDMA). This distinction is pivotal — it directly determines the minimum and maximum prison sentences applicable.
Penalty Table: Drug Offences
| Offence | Article | Substance type | Penalty |
|---|---|---|---|
| Basic drug trafficking | Art. 368 | Serious harm (cocaine) | 3 – 6 years |
| Basic drug trafficking | Art. 368 | Lesser harm (cannabis) | 1 – 3 years |
| Aggravated trafficking (Art. 369) | Art. 369 | Large amounts/minors | Next higher degree: 6 – 9 years (serious harm) / 3 years and 1 day – 4 years and 6 months (lesser harm) |
| Criminal organisation (Art. 369 bis) | Art. 369 bis | Organised crime | 9 – 12 years (serious harm) / 4 years and 6 months – 10 years (lesser harm); next higher degree for leaders, managers or administrators |
| Extreme gravity (Art. 370) | Art. 370 | Extreme gravity, use of minors, organisation leaders | Penalty of Art. 368 raised by one or two degrees — up to 13 years and 6 months for serious-harm substances |
| Personal possession (own use) | Not criminal | Personal amounts | Administrative fine only |
Key Defence Strategies
Own-Use Defence (Art. 368 CP)
If the quantity found corresponds to personal consumption patterns and there are no aggravating signs (scales, bags, large amounts of cash), the defence argues the substance was for personal use — not a criminal offence.
Cannabis Social Club Defence
Since the Supreme Court case law of 2015 (including a plenary judgment), ticking a list of formal requirements (adult members, no profit, no advertising) does not make a club lawful: organised distribution to a large and open membership can amount to trafficking. The defence rests on shared consumption within a small, closed group and, where appropriate, on mistake of law.
Challenging the 'Large Amount' Threshold
The threshold (which raises the sentence by one degree) is fixed by case law, not by statute. For cocaine or heroin it is calculated on the substance reduced to purity, so deducting adulterants brings many cases below the line; for hashish and marijuana it is computed on net weight, and the argument is then about the rigour of the weighing.
Breaking the Chain of Custody
Drug evidence is often challenged on chain of custody grounds. Procedural irregularities in seizure, sealing, transfer or analysis can invalidate the forensic evidence.
Criminal Organization: Proving Role
Being part of an organisation requires a group of more than two people, stable or indefinite, with tasks shared out in a concerted and coordinated way (Art. 570 bis CP). Sporadic cooperation or a minor role (driver, lookout) does not automatically trigger Art. 369 bis penalties.
Controlled Delivery and Police Provocation
Where there is police provocation (agent provocateur), the provoked offence is not punishable and what was obtained through the incitement cannot be used as evidence. Distinguish between undercover infiltration (lawful) and provocation of an offence that would not otherwise occur.
Specific Mitigating Factors in Drug Offences
Addiction (Art. 21.2 CP)
Proven drug dependence can operate as mitigating (simple), highly qualified mitigating, or even incomplete defence, significantly reducing the penalty. Requires psychological and medical expert reports demonstrating that the addiction affected the offender's ability to understand the unlawfulness of their conduct.
Active Collaboration (Art. 376 CP)
Provides a 1-2 degree penalty reduction for anyone who has voluntarily abandoned the criminal activity and actively collaborates with the authorities: to prevent the offence, to provide decisive evidence to identify or capture other offenders, or to stop the organisation operating. Strategic assessment is crucial before cooperating.
Shared Consumption Doctrine
The Supreme Court has defined 5 cumulative requirements: habitual identified consumers, closed premises, moderate quantity for immediate use, simultaneous consumption, and absence of profit. Failure of any one requirement converts the conduct into trafficking.
'Notoria Importancia' Thresholds by Substance
| Substance | Threshold | Practical reference | Penalty impact |
|---|---|---|---|
| Cocaine | 750 g reduced to purity | ~3–5 kg gross | 6–9 years |
| Heroin | 300 g reduced to purity | ~1–2 kg gross | 6–9 years |
| Hashish | 2.5 kg (net weight) | Marijuana: 10 kg (net weight) | 3 years and 1 day to 4 years and 6 months |
| MDMA | 240 g reduced to purity | Depends on the content of each pill | 6–9 years |
| Amphetamine | 90 g reduced to purity | ~300 g gross | 6–9 years |
| Methamphetamine | 30 g reduced to purity | Depends on the purity of the sample | 6–9 years |
The figures come from the table annexed to the Agreement of the Non-Jurisdictional Plenary of the Second Chamber of the Supreme Court of 19 October 2001, drawn up on the criterion of 500 daily doses and the report of the National Institute of Toxicology of 18 October 2001. The quantity is determined on the base substance reduced to purity, except for hashish and its derivatives, where net weight is used: that is why marijuana has its own threshold of 10 kg and is not the gross equivalent of the 2.5 kg of hashish.
Key Supreme Court Rulings
The Supreme Court confirms that cannabis clubs are lawful if they are genuinely closed associations, membership is strictly adult, no promotion is carried out beyond the membership, and quantities do not exceed personal consumption patterns. Any failure of these conditions may constitute drug trafficking.
As a rule the threshold is calculated on the pure substance after subtracting adulterants and impurities, so gross weight is not the correct measurement and the defence should request an independent quantitative analysis. The 2001 Plenary Agreement expressly excludes hashish and its derivatives from that rule: there the quantity is computed on net weight, and what the defence must contest is the weighing itself.
If police provocation created the intent to commit the offence (the accused would not have acted without the provocation), the offence is not punishable and the accused must be acquitted; the evidence obtained through the incitement cannot be used either. Mere opportunity provided by an undercover officer does not amount to provocation.
From Arrest to Trial: Key Procedural Stages
Arrest & Police Custody
Maximum 72 hours. Right to a lawyer and to remain silent. Never testify without your lawyer present.
Court Hearing (Art. 505 LECrim)
Within 72 hours. Judge decide: release, bail, or pretrial detention. Critical hearing for drug trafficking cases.
Investigation Phase
Analysis of evidence, expert reports (toxicology, purity). Period to challenge wiretaps and searches. Duration: 6-18 months.
Interim Order / Indictment
Prosecution formalises charges. Defence may request dismissal or downgrading of charges.
Oral Hearing
Trial before the Criminal Section or the Provincial Court depending on the penalty (basic cannabis trafficking goes to the former, substances causing serious harm to the latter), or before the National Court where an organised group acts with effects in several provinces or the offence was committed abroad. Duration: 1 day to several months in macro-cases.
FAQs: Criminal Organization
What is the difference between criminal organization and criminal group?
Can I be charged just for knowing traffickers?
What is a 'peripheral' in a criminal organization?
Are wiretaps the main evidence in macro-cases?
Can I benefit from cooperating with police?
What if I'm arrested in a raid but knew nothing?
Can all my assets be seized?
Can the National Court try me?
Can organization and trafficking charges be applied simultaneously?
What is a Joint Investigation Team (JIT)?
Is pretrial detention automatic in macro-cases?
Can I be convicted solely on a co-defendant's testimony?
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