Drug trafficking association: article 74 and encrypted evidence
Article 74 of Presidential Decree 309/1990 punishes association for the purpose of drug trafficking: not less than twenty years for those who promote or direct it, not less than ten for participants. It converts a dealing case into a different kind of proceeding, and across Europe a large part of the evidence in these cases now comes from decrypted messaging platforms.
The difference between article 73 and article 74
Article 73 punishes the conduct: holding, transporting, selling. Article 74 punishes the structure: three or more people bound in a stable organisation for the purpose of committing those offences.
The distinction is not the quantity involved. Several people repeatedly dealing together are not automatically an association: what is required is an organisational bond that exists independently of each individual transaction — roles, continuity, shared means, an awareness of belonging to something that outlasts the single deal.
Arguing a case back from Article 74 to Article 73 is the single most valuable move available in this area, because it changes the bracket, the precautionary regime and the whole shape of the proceedings.
What the charge brings with it
| Element | Effect | Note |
|---|---|---|
| Penalty | Not less than twenty years for organisers | Art. 74(1) |
| Participants | Not less than ten years | Art. 74(2) |
| Precautionary regime | Detention is the practical norm | Presumptions apply |
| Investigative tools | Wider interception powers | Special regime for organised crime |
| Assets | Confiscation, including in extended form | Runs alongside |
| Aggravation | Where mafia method or facilitation is alleged | Art. 416-bis.1 Criminal Code |
Messages from EncroChat and Sky ECC
Since the dismantling of the encrypted platforms used for these communications, a very large number of European prosecutions rest on material decrypted by one state and passed to others. The defence in these cases is not about the content of the messages but about how they arrived in the file.
The Court of Justice ruled in 2024 on the transfer of such material through a European Investigation Order, and national courts across Europe continue to divide on what follows from it. The arguments that are actually run are these.
- The legal basis of the acquisition. Whether the material was obtained under an instrument permitting the transfer, and whether the conditions attached to it were met.
- Disclosure. Whether the defence has been given enough about the method to test reliability, or only the resulting text.
- Integrity. Whether the chain from interception to the file is documented, and whether the material is complete or selected.
- Attribution. Whether a handle or device can be tied to a specific person, which is very often the weakest link.
- Usability under domestic law. Whether evidence gathered abroad by methods that would not have been permitted here can be used at all.
These are technical arguments requiring an expert, and they have to be raised early: once the material is treated as established, the case is about what the messages say.
Where dependence is in the picture
A person who is dependent and deals to fund their own use is not automatically outside Article 74, but the evidence of dependence bears directly on the role attributed to them, and it opens routes towards a treatment programme instead of detention. The certification takes time and should be started immediately.
Two countries, one operation
These proceedings are almost always cross-border, which raises questions that no single national court will resolve on its own: parallel proceedings in two states, the risk of being prosecuted twice for the same facts, and surrender between states while both cases are live. The framework is in the guide on the European Arrest Warrant and the coordination in how a correspondent case is run.
Frequently asked questions
What is the difference between article 73 and article 74?
Article 73 punishes the conduct, article 74 the structure: three or more people in a stable organisation. Repeated dealing together is not automatically an association.
What sentence does article 74 carry?
Not less than twenty years for those who promote or direct the association, and not less than ten years for participants.
Can EncroChat messages be used against me?
That is the central question in many current cases. The arguments concern the legal basis of the transfer, disclosure of the method, integrity of the material and attribution to a person.
Does drug dependence help?
It does not exclude the charge, but it bears on the role attributed to the person and opens routes towards a treatment programme rather than detention.
If article 74 has been charged
The first weeks decide the precautionary position, and the material has to be examined before it is treated as settled. First contact is free and covered by professional privilege.