How Can the Jurisdiction of the Audiencia Nacional (Spain's National Court, with jurisdiction over serious cross-border and organised crime) Be Challenged in Drug Trafficking Offences and Maritime Boardings?

The automatic assumption of jurisdiction by the Audiencia Nacional (AN) in drug trafficking cases (Articles 368 et seq. of the Criminal Code) is one of the most intense and strategic procedural debates during the criminal investigation stage. Successfully having a case transferred from the Central Court of Preliminary Investigation of the Audiencia Nacional to the ordinary Courts of Preliminary Investigation is not a mere bureaucratic formality: it represents a radical and direct change in the defense scenario for our clients. Moving the case has a deep impact on the appeals regime, territorial proximity, the speed of the investigation and, crucially, on judicial oversight and the maximum duration of precautionary measures restricting rights, such as pre-trial detention.

1. The Ordinary Legal Framework: The Dual Cumulative Test under Art. 65.1.d) LOPJ

For the Audiencia Nacional to retain jurisdiction over the investigation of a drug trafficking offence committed on Spanish national territory, the mere presence of a certain degree of complexity or the involvement of several defendants is not enough. Article 65.1.d) of the Organic Law of the Judiciary (LOPJ) explicitly and categorically requires the simultaneous concurrence of two cumulative and inseparable requirements:

• A Criminal Organisation or Group Structure: The existence of a stable, hierarchical criminal scheme with a specific division of roles among its members (in accordance with the offences set out in Articles 570 bis and 570 ter of the Criminal Code).
• Real Multi-Provincial Effects: The criminal activity of that organisation or criminal group must produce a real, effective and commercially significant impact on drug-distribution markets in more than one Provincial Court district (Audiencia Provincial).

💡 GOLDEN RULE OF CRIMINAL DEFENSE: The mere finding of a criminal organisation whose commercial effects of distribution and sale of the substance are exhausted or take place within the boundaries of a single province, or, conversely, the mere existence of co-defendants with residences or isolated arrests in different provinces but lacking an organised structure and a qualitatively multi-provincial commercial impact, completely excludes the jurisdiction of the Audiencia Nacional. In such cases, the defense must immediately file a plea contesting jurisdiction (declinatoria de jurisdicción) to force the case to be referred to the ordinary Courts.

2. The Principle of Ubiquity and the Doctrine of STS 703/2024

One of the most common scenarios of jurisdictional dispute arises when a vessel (or sailing boat) is boarded in international waters and the case is transferred as a whole to the Audiencia Nacional on the grounds of extraterritoriality. However, the Supreme Court has set a clear and essential limit that criminal practitioners must consult.

The authoritative Judgment of the Supreme Court (Criminal Chamber) No. 703/2024, of 4 July (Reporting Justice: Excma. Sra. D.ª Carmen Lamela Díaz; ROJ: STS 3769/2024 | ECLI:ES:TS:2024:3769) sets the leading precedent on the scope of Article 65.1.e) of the LOPJ. The Supreme Court clearly determines that, in order to validly attribute objective jurisdiction to the Audiencia Nacional for offences committed outside our borders, it is an essential condition that the typical conduct be carried out in its entirety abroad.

«Para afirmar la competencia objetiva prevista en la letra e) del art. 65.1 LOPJ es necesario que el delito se cometa en su integridad en el extranjero. Aun cuando la embarcación fue abordada en alta mar, lo que determinaría la competencia de la Audiencia Nacional, previamente las autoridades españolas habían tenido conocimiento de que aquella podía estar implicada... y las investigaciones no se iniciaron con el abordaje, sino en territorio español» (STS 703/2024). (To establish the objective jurisdiction provided for under Article 65.1.e) LOPJ, the offence must be committed in its entirety abroad. Even though the vessel was boarded on the high seas — which would otherwise determine the jurisdiction of the Audiencia Nacional — the Spanish authorities had already been aware beforehand that it might be involved… and the investigations did not begin with the boarding, but on Spanish territory.)

Under the well-established Principle of Ubiquity, Spanish criminal jurisdiction is primarily attributed to the judicial body of the territory best placed to investigate and try the facts, on grounds of efficiency, procedural speed and safeguarding the constitutional guarantees of the persons under investigation. If the law enforcement agencies already had prior knowledge of the vessel's suspicious activities, had monitored the sailing boat in Spanish territorial waters (such as the ports of the Balearic Islands), or had installed geolocation devices authorised by local courts before the boarding took place, jurisdiction of the territorial Court of Preliminary Investigation of origin prevails absolutely and without appeal over the residual jurisdiction of the Central Courts of Preliminary Investigation of the Audiencia Nacional.

3. High-Seas Boardings and Remote Pre-Trial Detention: The Key Points of Order AN 500/2026

For Spain to hold international jurisdiction over a high-seas boarding under Article 23.4.d) of the LOPJ — without needing to satisfy the rigid nationality or drug-destination links required on land under letter i) — the law and the case law of the Supreme Court and the Audiencia Nacional require the mandatory concurrence of the following procedural requisites:

1. The Geographical Requisite: Commission in the "International Maritime Space"

The conduct must have been committed strictly in international waters, that is, beyond the 12 nautical miles of the territorial sea of any State. If the facts occur wholly or partly within Spanish territorial sovereignty or that of another State, Article 23.4.d) of the LOPJ ceases to be the applicable rule.

2. The Conventional Requisite: Protection Under International Treaties

Spain's jurisdiction is conditional on the offence being provided for in an international treaty to which Spain is a party. In the case of international drug trafficking, the enabling legal framework is made up of the 1988 Vienna Convention (Article 17) and the United Nations Convention on the Law of the Sea (Montego Bay) (Article 108).

3. The Requisite of Cooperation and Flag-State Consent (Enabling Title)

To intervene on a vessel on the high seas and assume criminal jurisdiction to try its crew, the Spanish authorities need a legitimising title, which varies depending on the vessel's flag status:

If the vessel flies a legitimate foreign flag: Prior authorisation from the flag State must imperatively have been requested and obtained to board, inspect the vessel and detain the crew (Art. 17.3 and 17.4 of the Vienna Convention).

Subsidiary Jurisdiction: Preferential jurisdiction to try the case always belongs to the flag country. For Spain to be able to try the facts on a subsidiary basis, the flag State must authorise the delegation of jurisdiction, actively cooperate with the Spanish investigators and not claim preferential jurisdiction over the case for itself.

If the vessel has no flag or flies a fictitious flag (a stateless vessel): It is treated as a lawless vessel on the high seas. In this case, Spain's criminal jurisdiction to try those detained is directly and legitimately self-enabled through the very act of the physical boarding and subsequent apprehension, since there is no sovereign State that could raise a claim to preferential jurisdiction.

The alternative of Ordinary Jurisdiction: Investigations begun in Spain

It is crucial to recall that these "extraterritorial" international jurisdiction requirements only apply if the offence has been committed entirely abroad.

If State security forces had already opened a criminal investigation on Spanish territory into that vessel (through geolocation devices, port surveillance, telephone intercepts or prior monitoring at national ports) before proceeding to board it on the high seas, Spain does not need to resort to universal jurisdiction.

In that case, ordinary jurisdiction applies under the principle of ubiquity, since part of the iter criminis (preparatory or conspiratorial acts) took place on national soil. Under STS 703/2024, this circumstance not only validates Spain's jurisdiction, but also preferentially attributes jurisdiction over the investigation to the territorial Court of Preliminary Investigation of origin that opened the case, removing objective jurisdiction from the Audiencia Nacional.

The Validity of Remote Pre-Trial Detention Hearings and Detention Safeguards

Order AN 500/2026 confirms that the mandatory appearance required under Article 505 of the LECrim to determine the personal situation and order the pre-trial detention of persons detained on the high seas may validly take place remotely, by telematic means or videoconference, or, failing that, be deferred until the vessel physically arrives at the nearest Spanish port, while fully guaranteeing the active involvement of their defense lawyers.

«Con la entrada en vigor de la nueva regulación, se impone la libertad del detenido o la puesta a disposición de la autoridad judicial dentro del plazo máximo de setenta y dos horas. Esta puesta a disposición podrá ser realizada a través de medios telemáticos... a los detenidos en las circunstancias que prevé el precepto les serán reconocidos todos los derechos propios del detenido que regula la LECrim, en la medida que los mismos resulten compatibles con los medios personales y materiales existentes a bordo del buque...» (AAN 500/2026). (With the entry into force of the new regulation, either the detainee's release or their being brought before the judicial authority within a maximum period of seventy-two hours is required. This may be carried out through telematic means... detainees in the circumstances covered by the provision are recognised as holding all the rights of a detained person under the LECrim, to the extent compatible with the personal and material means available on board the vessel...)

This non-extendable 72-hour period for determining the personal situation begins to run from the actual detention on board the vessel intercepted by the Spanish authorities or patrol units (such as Customs Surveillance or the Guardia Civil), and requires the immediate activation of essential safeguards and rights (information on rights in the detainee's own language, basic on-board medical assistance, appointment of a lawyer and the filing of a Habeas Corpus petition where appropriate).

4. Comparative Table of Extraterritorial Jurisdictional Attribution

To provide a quick, rigorous visual overview for daily courtroom practice, we have summarised the Audiencia Nacional's case law on the limits and independence of the extraterritorial jurisdiction-attribution provisions:

5. Procedural Jurisdiction Review for the Defense of the Person Under Investigation

If we take on the criminal defense of a person under investigation for drug trafficking before the Audiencia Nacional, the first phase must focus on auditing objective jurisdiction. Follow these steps rigorously to raise a successful plea contesting jurisdiction:

• ☐ Audit the Origin of the Investigation and Ubiquity: Verify the police actions on land before departure to the high seas. If there were prior surveillance, tracking devices, telephone intercepts or geolocation, immediately request jurisdiction for the territorial Court of Preliminary Investigation of origin under the doctrine of STS 703/2024.
• ☐ Challenge the Multi-Provincial Nature of the Organisation: Analyse whether the commercial distribution of the seized drugs or the typical effects of the scheme are exhausted within the geographical boundaries of a single Spanish province. If so, the essential requisite of Article 65.1.d) LOPJ is excluded.
• ☐ Scrutinise the 72-Hour Time Limit on the High Seas: Carefully calculate the time elapsed from the detention of the person under investigation on board until the telematic or physical appearance to confirm pre-trial detention. If the rights set out in Article 520 ter LECrim were violated, challenge the validity of the precautionary measure under Order AN 500/2026.
• ☐ File a Plea Contesting Jurisdiction (Declinatoria de Jurisdicción) Expressly: Expressly request that the proceedings be referred elsewhere on the grounds of a flagrant violation of the guarantee of the Judge Predetermined by Law, protected under Article 24.2 of the Spanish Constitution.

6. Frequently Asked Questions (FAQs) on Jurisdiction in Drug Trafficking Cases

▶ Is it lawful to order pre-trial detention in writing while the vessel is being transferred to Spain?

Yes, it is fully lawful provided the safeguards under Article 520 ter LECrim are met. Order 500/2026 of the Audiencia Nacional confirms that detainees on the high seas may be brought before the judicial authority telematically within the first 72 hours of their detention on board, allowing the physical appearance to confirm the measure, with legal assistance, to be postponed until the vessel arrives at port.

▶ Does the boarding of a vessel in international waters always fall under the jurisdiction of the Audiencia Nacional?

Not automatically. Under the doctrine of the Supreme Court established in STS 703/2024, if there were previously well-founded suspicions and investigations under way on national sovereign territory carried out by the Spanish authorities (for example, wiretaps, satellite tracking devices, surveillance at ports of origin), the case must be investigated by the territorial Court of Preliminary Investigation that opened the initial proceedings.

▶ Does the offence of extraterritorial drug trafficking require proof that the cargo was destined for Spain in order for jurisdiction to apply?

No. Order AN 500/2026 confirms the full autonomy of the attribution rule under Article 23.4.d) of the LOPJ with respect to letter i). High-seas boardings (international maritime space) are governed by letter d), which is based directly on international cooperation treaties against drug trafficking of universal application, and does not require proof of nationality links or the drugs' final destination.

Conclusion:

The technical defense against large drug seizures or boardings in international maritime spaces is not limited to disputing the merits of the case or the chain of custody of the narcotic substance. In the criminal law of authorship and organisation, the jurisdiction of the court is the foundation of all procedural steps. A rigorous criminal defense lawyer must carefully audit the origin of the police action and the safeguards surrounding the remote detention of their client. Diligently invoking STS 703/2024 and Order AN 500/2026 can open the door to dismantling the jurisdiction of the Audiencia Nacional, returning the proceedings to their natural forum for the direct benefit of the effective judicial protection of the person under investigation.