Human Trafficking for Labour Exploitation: Where the Offence against Workers' Rights Ends and Art. 177 bis CP Begins

It is one of the accusations that most bewilders the person who receives it. A business owner in agriculture, construction or hospitality assumes they may be breaching labour regulations, perhaps even facing a serious penalty. What they do not expect is an offence carrying a prison sentence of five to eight years and the name human trafficking. The distance between the two is not set by how harsh the employment relationship is: it is set by the means used.

You are under investigation for trafficking: what Art. 177 bis.1.a CP punishes

The provision describes three elements that must all be present at once:

• Conduct: recruiting, transporting, transferring, harbouring or receiving the victim, including the exchange or transfer of control over them.
• A means: violence, intimidation or deception; or abuse of a position of superiority, of need or of vulnerability of the victim, whether Spanish or foreign; or the giving or receiving of payments or benefits to secure the consent of whoever has control over them.
• A purpose: under letter a) of subsection 1, the imposition of forced labour or services, slavery or practices similar to slavery, servitude or begging.

If one of the three is missing, the offence of trafficking does not stand. That, in most proceedings, is the defence's first line of work.

The line with Art. 311 CP

Art. 311 CP punishes with imprisonment of six months to six years and a fine of six to twelve months, among other cases, anyone who through deception or abuse of a situation of need imposes on workers in their service working or Social Security conditions that harm, remove or restrict rights recognised by legal provisions, collective agreements or an individual contract; anyone who imposes illegal conditions by engaging people under arrangements outside the employment contract; and anyone who simultaneously employs a number of workers without notifying their registration with Social Security or without a work permit, exceeding the percentages the provision itself sets according to the size of the company.

Note that Art. 311 CP shares two means with Art. 177 bis — deception and abuse of a situation of need — and yet describes a very different offence. The difference lies in the object: Art. 311 punishes imposing conditions on someone who is already an employee of the company; Art. 177 bis punishes placing the person under the control of another with the purpose of subjecting them to forced labour. One degrades an employment relationship; the other extinguishes the person's freedom.

And with Art. 312 CP

Art. 312 CP punishes with imprisonment of two to five years and a fine of six to twelve months the illegal trafficking of labour, and in its subsection 2, anyone who recruits people or induces them to leave their job by offering deceptive or false employment or working conditions, as well as anyone who employs foreign nationals without a work permit in conditions that harm, remove or restrict their rights.

This is the intermediate level, and the one most often confused with trafficking because it also covers recruitment through deception. The boundary again comes down to the purpose and the degree of subjection: if what was offered was a worse job than promised, this falls under Art. 312; if the aim was to have control of the person, it falls under Art. 177 bis. The full picture is set out in our article on offences against workers' rights.

The aggravations that push up the sentence

• Art. 177 bis.4 CP — penalty one degree higher where the life or physical or psychological integrity of the persons has been endangered; where the victim is especially vulnerable due to illness, pregnancy, disability or personal situation, or is a minor; or where their vulnerability was caused or aggravated by displacement resulting from an armed conflict or a humanitarian disaster.
• Art. 177 bis.6 CP — penalty one degree higher and special disqualification where the offender belonged to an organisation or association of more than two people, even a temporary one, engaged in these activities.
• Art. 177 bis.2 CP. Where the victims are minors and the purpose is exploitation, none of the means under subsection 1 needs to be shown: the conduct and the purpose are enough.
• Art. 177 bis.8 CP. Incitement, conspiracy and solicitation are also punished, with the penalty one or two degrees lower.

The victim's consent

This is the most common argument and the one with the least chance of success as it is usually put forward. Art. 177 bis.3 CP declares consent irrelevant where one of the means under subsection 1 was used. Consent obtained through deception, or extracted from someone in a situation of need, is not consent for the purposes of the offence.

A useful defence, therefore, does not consist of arguing that the person agreed, but in disputing that the means was present: that there was no deception because the conditions offered were the ones actually applied, or that the situation of need was not exploited by the employer but was prior and independent of them. It is a subtle distinction on paper and a decisive one at trial.

Exemption from punishment for the victim

A little-known point: Art. 177 bis.11 CP provides that a trafficking victim is exempt from punishment for criminal offences they committed in the exploitation situation suffered, provided their involvement was a direct consequence of the violence, intimidation, deception or abuse to which they were subjected and due proportionality is present. This matters because in many proceedings the exploited persons initially appear as suspects — for false documentation, for property offences, for administrative infractions — before their status as victims is recognised.

How an accusation of this kind is defended

• Attack the means before the facts. If violence, intimidation, deception or abuse is not proven, the classification falls to Arts. 311 or 312 CP, a difference of years in prison.
• Document freedom of movement. Contracts, payslips, registrations, actual working hours, accommodation, custody of documents and freedom to leave the job.
• Analyse the origin of the vulnerability. A pre-existing irregular situation does not, without more, amount to vulnerability exploited by the employer.
• Review the business structure. A finding of organisation under Art. 177 bis.6 CP requires more than two people acting in concert for this activity, not simply a company with several partners or managers.
• Handle the concurrence of offences carefully. Art. 177 bis.9 CP allows the subsequent exploitation to be punished separately; it is worth setting out from the start which facts are attributed to each charge.

If you are facing an investigation of this kind, you can consult our defence service for trafficking for labour exploitation or call us at +34 91 078 65 74.