OF THE DIFFERENCE BETWEEN THE CONCEPT OF CRIMINAL ORGANIZATION, ORGANIZED GROUP, AND CO-DELINQUENCY. REGARDING THE SO-CALLED “ILLICIT ASSOCIATION”.

INTRODUCTION

Among the innovations introduced by the reform of the Criminal Code through Organic Law (LO) 5/2010 of 22 June, is the creation of a new Chapter VI in Title XXII of Book II, which includes Articles 570 bis, 570 ter and 570 quater, under the heading “Criminal Organizations and Groups.”

This responds to the need to establish a regulatory instrument aimed at adequately combating all forms of organized crime and also reflects commitments derived from international instruments aimed at harmonizing national legislation and strengthening police and judicial cooperation among the Member States of the European Union in the fight against so-called transnational organized crime, both in terms of prevention and criminal repression.

Thus, reference must be made to the Resolution of 20 November 1997 of the European Parliament on the “Action Plan to Combat Organized Crime,” which was implemented through Joint Action 98/733/JHA of 21 December 1998 of the Council of the European Union, concerning the criminalization of participation in a criminal organization in the Member States of the European Union.

Likewise relevant is Council Decision 2004/579/EC of 29 April, approving on behalf of the Community the United Nations Convention against Transnational Organized Crime of 15 November 2000, which Spain signed on 13 December 2000 and ratified by Instrument of 1 September 2003. Also noteworthy is Framework Decision 2008/841/JHA of 24 October of the Council of the European Union, on combating organized crime and facilitating mutual recognition of judgments and judicial decisions.

For this reason, the Explanatory Memorandum of LO 5/2010 of 5 June, as recalled by Supreme Court Judgment No. 271/2014 of 25 March, states that in order to justify the innovations regarding the new criminal categories of organization:

it must also be recalled that the case law relating to the offence of illicit association, as well as that which has analyzed the occasional references that the current Criminal Code makes to criminal organizations (for example in drug trafficking matters), requires verification of a structure with a vocation for permanence, thereby leaving outside other analogous phenomena widely present in contemporary society, sometimes extremely dangerous or violent, which do not meet those structural requirements.

The need to respond to this reality led to the definition, parallel to criminal organizations, of what the law calls criminal groups, defined in Article 570 ter precisely by exclusion, that is, as forms of criminal coordination that do not fit the archetype of criminal organizations but nevertheless add an additional degree of criminal dangerousness to the actions of their members.

The structure of these new offences—adds the explanatory memorandum of LO 5/2010—follows a similar scheme in both cases, organizations and groups. However:

• Penalties are more severe for criminal organizations, whose more complex structure represents a greater threat to the legal order and public security.

• Their different nature requires differences in the description of the criminal conduct.

“CRIMINAL ORGANIZATION”, “CRIMINAL GROUP”, AND “CO-DELINQUENCY”:

DEFINITION, REQUIREMENTS, DIFFERENCES, AND CASE LAW

Following the reform introduced by LO 5/2010, the Criminal Code recognizes two distinct criminal figures:

• Criminal organization

• Criminal group

Criminal Organization

Article 570 bis defines a criminal organization as:

a group formed by more than two persons, with a stable character or indefinite duration, who act in a coordinated and concerted manner, distributing various tasks or functions among themselves for the purpose of committing crimes.

Criminal Group

By contrast, Article 570 ter defines a criminal group as:

the union of more than two persons who, without meeting one or more of the characteristics of a criminal organization defined in the previous article, aim to commit crimes in a concerted manner.

Main Differences

Both figures require:

• The association of more than two persons

• The purpose of committing crimes

However:

Criminal organization requires additionally:

• Stability or indefinite duration

• Coordinated division of roles or functions

Criminal group requires only:

• More than two persons

• The concerted intention to commit crimes

Therefore, a criminal group may exist even if one or both of the structural elements of organization are absent.

Jurisprudential Interpretation

Spanish Supreme Court case law has repeatedly addressed the distinction between these concepts, including:

• Supreme Court Judgments 309/2013 (1 April)

• 855/2013 (11 November)

• 950/2013 (5 December)

• 1035/2013 (9 January 2014)

The legislator intended to provide tools to combat two different levels of criminality:

1. Transnational organized crime, characterized by:

• • Professionalization

  • Technical sophistication

  • Integration into legal economic or social structures
    → addressed through criminal organization (Art. 570 bis).

2. Smaller-scale organized crime, often operating within a limited territorial scope and focused on less complex criminal activities
→ addressed through criminal group (Art. 570 ter).

These represent two different levels of danger to protected legal interests, which explains the different severity of penalties.

Interpretation of Criminal Organization

An overly broad interpretation of criminal organization must be avoided, since it could improperly include situations that more accurately correspond to criminal group, thereby rendering the latter almost meaningless.

The decisive factor distinguishing the two is the complexity and consistency of the organizational structure.

According to Supreme Court Judgment No. 1035/2013, the combination of:

• temporal stability, and

• structural complexity

justifies higher penalties, because it increases the capacity to cause harm—for example by facilitating:

• larger drug quantities

• broader territorial operations.

Conversely, according to Supreme Court Judgment No. 950/2013, a criminal group may exist for a certain period depending on the crimes committed but lacks a clearly defined organizational structure.

Example: Criminal Organization (STS 669/2017, 11 October)

The Supreme Court confirmed the existence of a criminal organization where:

• The accused engaged in continuous large-scale trafficking of hashish and cocaine

• The activity lasted from October 2008 to February 2009

• Members communicated via mobile phones

• They acted coordinatedly in storage, transport, manipulation, distribution and sale

• There was a clear hierarchy and division of roles

The leader:

• Directed operations

• Organized transportation from Morocco

• Decided when and how deliveries occurred.

Other members performed roles such as:

• negotiating with buyers

• collecting drugs

• distributing them.

This hierarchical structure demonstrated the existence of a criminal organization rather than mere co-delinquency.

Example: Criminal Group (STS 505/2016, 9 June)

In another case, the Supreme Court recognized the existence of a criminal group, not a criminal organization.

The defendants planned to:

• import cocaine from South America to Catalonia

• establish regular shipments twice per month

• finance operations through smaller drug transactions.

Although the defendants collaborated in drug trafficking operations, the Court noted the absence of a strict hierarchical structure, which led to the classification as a criminal group.

Co-Delinquency vs Organized Crime

Before 2010, the Criminal Code did not provide a clear definition of organization or association.

The reform clarified that a criminal organization generally involves:

• a decision-making center

• hierarchical levels

• replacement mechanisms ensuring continuity of the criminal project.

In contrast, co-delinquency simply involves several individuals cooperating in the commission of a crime, without forming a structured criminal entity.

The Supreme Court emphasizes that:

• the mere presence of several persons committing a crime together may constitute co-perpetration

• but it does not automatically imply a criminal organization.

Leadership Roles in Criminal Organizations

Article 369 bis paragraph 2 establishes aggravating circumstances for:

• leaders

• administrators

• managers

These roles are defined as follows:

• Leader: the person who gives orders to other members.

• Administrator: the person responsible for the organization’s economic management.

• Manager: the person entrusted with supervising a specific operation or activity.

According to Supreme Court jurisprudence:

• leaders are those who give instructions, provide resources, arrange logistics, or direct operations

• several individuals may share leadership functions.

Courts often rely on circumstantial evidence, because the internal structure of criminal organizations is rarely demonstrable through direct proof.

Final Consideration

Ultimately, determining whether a situation involves:

• co-delinquency

• criminal group

• criminal organization

requires careful judicial assessment of:

• number of participants

• duration and stability

• division of roles

• hierarchical structure

• capacity of the criminal project to operate independently of individual participants.

These elements allow courts to differentiate between simple collaborative crime and structured criminal enterprises, ensuring proportionality in criminal penalties.