Organic Law 5/2021: Repeal of Art. 315.3 CP Strike Coercion

Organic Law 5/2021, of 22 April (BOE-A-2021-6600), introduced a reform that is short in text but notable in symbolic and practical terms: it repealed paragraph 3 of Article 315 of the Criminal Code (CP), the provision that punished with aggravated penalties anyone who, acting in a group or individually but in agreement with others, coerced other people into starting or continuing a strike. As a firm dedicated exclusively to criminal law, we explain what changed, why, which articles are affected and, above all, what it means today for anyone being investigated or prosecuted and for those acting as victims or injured parties. You can review the full picture of recent legislative changes on our criminal law reforms page.

What the reform changed and why

Until Organic Law 5/2021 came into force, Article 315 CP contained, in its paragraph 3, a specific and aggravated form of coercion relating to the exercise of the right to strike. The provision punished those who coerced other people into starting or continuing a strike, with a more severe criminal response than the one provided for ordinary coercion. In practice, it was an offence designed for the context of collective conflict and trade-union activity.

The reform responded to a criticism sustained over many years: that paragraph was regarded as a disproportionate criminal treatment of conduct linked to the exercise of fundamental rights, in particular the right to strike recognised in Article 28.2 of the Constitution. The existence of a specific aggravated offence created a chilling effect on the exercise of trade-union activity and placed within the criminal sphere disputes that could and should largely be resolved by other means. By removing paragraph 3 of Article 315 CP, the legislature eliminated that specific aggravation and returned this type of conduct to the general framework of the Criminal Code.

The affected provision: paragraph 3 of Art. 315 CP

The technical reach of the reform is very precise. It is worth distinguishing clearly between what disappears and what remains:

• What is repealed. Only paragraph 3 of Article 315 CP disappears, that is, the aggravated form that punished coercion to start or continue a strike. With its removal, that conduct no longer has its own autonomous offence within the crimes against workers' rights.
• What remains in Art. 315 CP. The rest of Article 315 CP, which protects freedom of association and the right to strike against those who prevent or limit their exercise through deceit or abuse of a situation of need, is not affected by the repeal of paragraph 3. The provision continues to protect those who exercise these rights.
• What remains outside Art. 315 CP. The general coercion offence under Article 172 CP remains fully in force. Anyone who, without being lawfully authorised, prevents another by force from doing what the law does not prohibit, or compels them to do what they do not want, may still answer for coercion where the requirements of that offence are met.

The practical effect is clear: a specific form of coercion — that aimed at starting or continuing a strike — is decriminalised, but no zone of absolute impunity is created. Genuinely coercive conduct carried out in the context of a labour dispute can still be examined through the lens of ordinary coercion under Article 172 CP, albeit without the specific aggravation that existed before.

The line between exercising the right to strike and coercion

In practical terms, the reform reopens a classic question of labour criminal law: where the legitimate exercise of the right to strike ends and punishable coercion begins. The right to strike includes activities of information, persuasion and calls to join — the well-known informative pickets — which are a lawful expression of freedom of association and of expression.

The line is crossed when the activity ceases to be informative or persuasive and becomes imposition through violence or intimidation. The key lies not in the context (a strike) but in the means used: informing, convincing and urging people to join is the exercise of a right; forcing someone through force, serious threat or intimidation to join or abandon a strike may amount, depending on the facts, to the coercion offence under Article 172 CP. After Organic Law 5/2021, that analysis is now carried out without the specific aggravation of the former paragraph 3 of Article 315 CP.

What it means today for the investigated, the accused and victims

For anyone being investigated or prosecuted for acts that occurred in the context of a strike, the repeal has a direct consequence: it is no longer possible to convict under paragraph 3 of Article 315 CP. If the facts predate the reform and are tried afterwards, the principle of application of the most favourable criminal law comes into play, which may lead to acquittal for that specific offence or to a review of a classification based on the repealed provision. The discussion then shifts to whether the facts fit within coercion under Article 172 CP.

For those acting as victims or injured parties — for example, a worker who felt forced to join or abandon the strike — the reform does not leave them unprotected: genuinely coercive conduct can still be reported and, where appropriate, prosecuted through ordinary coercion under Article 172 CP, in addition to the remedies available in the labour sphere. What changes is the legal classification and the reference penalty, not the existence of criminal protection against actual violence or intimidation.

In both situations, the temporal application of criminal law cuts across the matter: where the facts predate 23 April 2021 but are tried afterwards, the regime more beneficial to the defendant must be applied, which requires a careful review of the starting classification.

Defence strategies after the repeal

On the basis of this reform, the main lines of defence we work on are:

• Inapplicability of the repealed provision. This is the central line. If the prosecution relies on paragraph 3 of Article 315 CP, its repeal must be raised and, for earlier facts, the retroactive application of the most favourable criminal law.
• Delimitation from Art. 172 CP. Arguing that the facts do not amount to ordinary coercion: that this was information, persuasion or exhortation proper to an informative picket and not imposition through violence or intimidation.
• Legitimate exercise of a fundamental right. Framing the conduct within the right to strike and within freedom of association and of expression, as a ground that excludes unlawfulness where one acts within the limits of the right.
• Absence of elements of the coercion offence. Challenging the presence of sufficient violence or intimidation, the causal link or the unlawful nature of the means used, as opposed to mere annoyances or inconveniences inherent in a collective dispute.
• Proportionality and individualisation. In group conduct, avoiding blanket attribution and requiring proof of the specific contribution of each person investigated to the allegedly coercive conduct.

How to act if this reform affects you

If you are being investigated, have already been charged, or act for the prosecution in a matter linked to a strike or a collective dispute, it is advisable to review the starting classification as soon as possible. The difference between the repealed provision and coercion under Article 172 CP, together with the application of the most favourable law, can be decisive. Strategy is decided in the early stages of the proceedings: the statement, the evidence about the means actually used and the debate over the limits of the right to strike set the course of the entire case.

You can read more about this and other amendments in our criminal law reforms section, consult the provisions in the annotated Penal Code, or learn how we approach criminal defence in this type of matter. You will find further analysis of legislative and procedural developments on the firm's blog.