What is the difference between a criminal organisation and a criminal group?

A criminal organisation requires a stable or indefinite grouping, with a coordinated and concerted distribution of tasks. A criminal group is a broader figure: a union of more than two people to commit offences in a concerted way, but without meeting all the characteristics of the organisation, such as stability or structure. Both require a minimum of three people, and the organisation is the more serious of the two.

And if it does not even amount to a criminal group?

Then we are dealing with mere co-authorship: several people taking part together in a specific act, without a stable, concerted union to commit offences. Co-authorship is not a structural offence, so it adds no membership penalty to whatever was committed. That is why one of the defence's aims is to dispute whether the facts stay at this level and do not even reach the group.

Why does it matter so much to be accused of an organisation instead of a group?

Because it changes the penalty. Being classified as a criminal organisation carries higher penalties than a criminal group, whose lower brackets start at months in prison. That is why one of the central points of the defence is to dispute whether the facts really fit the organisation or, at most, constitute a group, or not even that.

Can I be convicted of a criminal organisation even if I was not the leader?

Yes. Liability for belonging to a criminal organisation is not limited to whoever directs it. The Criminal Code distinguishes between those who promote or direct it and those who simply participate or are part of it, with different penalties. Determining your real role within the structure, against what the prosecution claims, is key to the defence.

Is the organisation penalty always added to that of the offence committed?

Not always. As a general rule, belonging to the structure is a separate offence that is added to the specific offence. But in some offences, such as drug trafficking, the Criminal Code already provides for the organisation as an aggravating factor within the offence itself (art. 369 bis). When the organisation is dedicated only to trafficking, that subtype displaces the autonomous organisation offence and the same conduct is not punished twice. It changes if the organisation pursues aims beyond drugs, in which case there can be a concurrence of offences.

Does an offence need to have been committed for there to be a criminal organisation?

Belonging to a criminal organisation or group is, in itself, an offence separate from the offences committed through it. In other words, belonging to the structure can be prosecuted independently of the specific offences. Whether both penalties add up depends on whether the offence in question already incorporates the organisation as an aggravating factor.

Criminal Organisation vs Criminal Group: The Difference

When the words criminal organisation appear in an accusation, the situation changes all at once. Answering for an offence is not the same as answering, on top of that, for belonging to a structure. And here there is a nuance many people don’t know that carries enormous weight: a criminal organisation is not the same as a criminal group, and neither is the same as several people simply acting together. The difference between one rung and the next can mean years of sentence. Let’s explain it.

What is the difference between a criminal organisation and a group?

The difference lies in structure and stability. A criminal organisation requires a stable or indefinite grouping, with a structured, coordinated and concerted distribution of tasks. A criminal group is a broader and less demanding figure: the union of more than two people to commit offences in a concerted way is enough, without that stable structure.

It helps to see it as a three-rung scale, from most to least serious:

Criminal organisation (art. 570 bis): a stable structure and a defined distribution of functions. It is the most serious figure, because it presupposes a criminal machinery with a degree of permanence.
Criminal group (art. 570 ter): a union of three or more people to commit offences in a concerted way, but without that stable structure. A lower penalty than the organisation.
Co-authorship: several people taking part together in a specific act, without structure or a concert to commit a plurality of offences. It is not a structural offence: it adds no membership penalty.

Put simply: the group is the broader figure and the organisation the most demanding case within it. What sets the organisation apart is that it adds two features the group may lack: permanence over time and a structured distribution of functions.

What does the Criminal Code say?

The Criminal Code regulates these two figures in separate articles. The criminal organisation is in Article 570 bis, which defines it as a grouping formed by more than two people, of a stable or indefinite nature, who in a concerted and coordinated way distribute various tasks or functions to commit offences.

The criminal group is in Article 570 ter, which defines it as the union of more than two people who, without meeting one or some of the characteristics of the criminal organisation, have the purpose of the concerted commission of offences. The key to the group is precisely that: it lacks some element of the organisation, usually the stability or the structure of distribution of functions.

Co-authorship has no article of its own because, quite simply, it is not a structural offence. It is the mere joint participation of several people in one or more acts, without that concerted union oriented towards committing offences in a stable way that defines the group. That is why it matters: if the facts stay at co-authorship, there is no membership offence to add to whatever was committed.

What penalties does each one carry?

The penalties differ greatly depending on whether we are talking about an organisation or a group, and on each person’s role.

Criminal organisation (art. 570 bis):

Whoever promotes, sets up, organises, coordinates or directs it: four to eight years in prison if the aim is to commit serious offences; three to six years in other cases.
Whoever actively participates, is part of it or cooperates financially or in any other way: two to five years if the aim is serious offences; one to three years in other cases.
Penalties rise to their upper half when the organisation is made up of a large number of people, has weapons or dangerous instruments, or has advanced technological means; and if two or more of those circumstances apply, the next higher penalties are imposed.

Criminal group (art. 570 ter):

If the group’s aim is to commit offences against life, integrity, liberty, sexual indemnity or human trafficking: two to four years for one or more serious offences; one to three years for less serious ones.
If the aim is to commit any other serious offence: six months to two years.
For less serious offences, or the repeated commission of minor offences: three months to one year.

Separate offence or aggravating factor: why penalties are not always added

Belonging to a criminal organisation or group is, as a general rule, an offence in itself, separate from the specific offence committed through the structure. That is, you can be prosecuted on one hand for belonging and on the other for the offences committed, and those penalties add up. That is the general rule.

But there is an important exception, and it affects one of the most frequent offences in this area: drug trafficking. In certain offences, the Criminal Code already includes belonging to an organisation as an aggravating factor within the offence itself. In drug cases, that aggravation is in Article 369 bis. And when the organisation is already provided as a specific aggravating factor within the trafficking offence, additionally punishing the autonomous organisation offence separately would assess the same conduct twice: case law rejects this for breaching the ne bis in idem principle. In practice, the aggravated subtype of 369 bis, designed specifically for drug trafficking, displaces the generic organisation offence of 570 bis.

That said, this is not automatic in every case. If the organisation pursues aims that go beyond drug trafficking, for example structural money laundering or other serious offences, that membership has its own wrongfulness that 369 bis does not exhaust, and then the organisation offence can be punished in concurrence with trafficking. That is why it is worth examining carefully what the structure the prosecution describes is really for.

And there is another decisive nuance: all of the above applies to the organisation, not to the group. Article 369 bis aggravates for belonging to an organisation, but does not mention the criminal group. So if trafficking is committed through a simple group, we return to the general rule: the criminal group is punished on one side and drug trafficking on the other, and the penalties add up.

The result is a counter-intuitive but highly relevant asymmetry for the defence: in drug trafficking, being placed in an organisation dedicated only to drugs may not add a separate offence on top (because the aggravated subtype of 369 bis applies), while being placed in a group does accumulate two distinct offences. Which of the two routes is triggered completely conditions the total penalty you face.

The role of each person within the structure

The Criminal Code does not treat whoever promotes or directs an organisation the same as whoever simply participates or is part of it. The penalties differ according to the function, and the prosecution tends to attribute more relevant roles than sometimes apply. That same distinction also appears in drug trafficking, where leaders, managers or administrators of the organisation face a more serious penalty than the rest (Article 370.2), which requires proof of a real capacity to direct or decide, not a mere attribution.

What I see in these cases is that the prosecution draws a structure and assigns roles, and the defence has to examine whether that picture matches reality or is inflated. Proving what your real position was, and whether the facts fit the organisation figure or not, is where a large part of the sentence is played out. Because of the complexity of these matters, they are best handled with an organised crime defence lawyer from the start.

This article is for informational purposes and does not constitute legal advice. Every case has specific circumstances that can completely change the analysis. If you need concrete guidance on your situation, consult a criminal defence lawyer.