Criminal Defense Lawyers in Labor Inspections

Defense during Labor Inspection

A surprise visit from the Labor Inspectorate can trigger criminal proceedings if irregularities are detected that endanger safety. The Inspector's report has a presumption of veracity.

It is vital to have legal advice from the first minute. Contradictory statements to the Inspector can be the sentence of the future trial. We prepare appeals against Infringement Reports (Actas de Infracción) to stop the administrative route before it jumps to the criminal route.

Obstruction of Inspection Activity

Warning! Denying entry to the Inspector, refusing to identify workers, or hiding documentation can be a Crime of Obstruction. It is not just a fine. We defend businessmen accused of hindering inspection work, arguing lack of intent or confusion in the requirement.

Social Security and Labour Crimes (Arts. 311-312 CP)

An inspection may uncover conduct that crosses from administrative infringement into the criminal sphere. Article 311 CP punishes those who, by deceit or abuse of a situation of need, impose working conditions that harm, suppress or restrict workers' recognised rights, with imprisonment of 6 months to 6 years and a fine; the same applies to employing a significant number of workers without registering them with Social Security. Article 312 CP punishes the illegal trafficking of labour and recruiting workers with false or misleading promises. Social Security fraud exceeding €50,000 (Art. 307 CP) carries 1 to 5 years' imprisonment. Because the same facts cannot be punished twice (non bis in idem), where the criminal route proceeds the administrative sanctioning procedure is suspended.

Defense

Two lines guide the defence. The first is the early appeal: challenging the facts recorded by the Inspector before they become firm evidence, because the report's presumption of veracity can be rebutted with documentation and contrary evidence presented in time. The second is the lack of intent: justifying that a missing document was not a refusal but a temporary unavailability, or that an apparent obstruction stemmed from confusion about the exact terms of the requirement. The aim is to stop the matter on the administrative track and prevent it from escalating into a crime of obstruction.

From the Labour Inspectorate Report to Trial: Stages of the Criminal Process

When the Labour and Social Security Inspectorate detects indications of a crime, it forwards the proceedings to the Public Prosecutor and, where appropriate, to the competent investigating court, suspending the administrative penalty procedure until a final ruling is issued in the criminal route. The inspection report operates as a kind of technical police report: it sets out the verified facts, the prevention rules allegedly breached and the identity of those bound by the safety duty. It is neither a judgment nor binding on the criminal judge, but it opens the investigation and shapes the initial framing of the charge, so the defence must be articulated from that very first moment.

During the investigation the judge orders steps to clarify the facts and identify those responsible: statements from the accused and witnesses, preventive documentation (prevention plan, risk assessment, worker training and information, delivery of protective equipment) and expert reports on the cause of the accident. The defence takes part by proposing evidence, challenging the prosecution expert and defining who actually held the safety duty. Once the investigation closes, if the oral trial is opened, the matter is normally tried before the Criminal Court (Juzgado de lo Penal), and never before the National High Court, which has no jurisdiction in this field.

At trial the presumption of innocence applies and the burden of proof falls on the prosecution. The inspection report enjoys a presumption of accuracy as to the facts materially verified by the official (Article 23 of Law 23/2015), but this is a rebuttable presumption that admits evidence to the contrary and does not extend to value judgments, culpability or legal classification. Dismantling the technical account, showing the absence of serious and concrete danger or breaking the causal link are the pillars on which an acquittal is built.

Technical Expert Evidence and the Causal Link in Safety Offences

The offence under Article 316 of the Criminal Code is a concrete-danger offence: it requires that the breach of occupational risk-prevention rules placed the workers' life, health or physical integrity in serious danger. A mere formal non-compliance or a documentary irregularity is not enough; it must be proven that a serious and imminent risk arose from that omission. Technical expert evidence therefore becomes the heart of the case: reconstruction of the accident or the risk situation, description of the protective means omitted and assessment of whether their absence truly generated the serious and concrete danger demanded by the offence.

The prosecution usually relies on the report of the authorised technician and on the inspectorate's own expert opinion. The defence counters with an independent expert who scrutinises the causal chain rigorously: which specific rule was breached? Did that rule actually require the very means whose absence is alleged? Was the omission the efficient cause of the danger, or did factors beyond the obligor's control intervene? The distinction between failing to provide the necessary means (the typical conduct) and a supervening failure, a third party's reckless act or an unforeseeable circumstance is decisive in excluding criminal liability.

The causal link must be proven, not presumed. Where independent causes intervene between the preventive breach and the dangerous outcome, objective imputation weakens and may break. Moreover, if a fatal or injurious result ultimately occurred, the classification shifts towards an ideal concurrence of the danger offence with reckless homicide or reckless injury under Articles 142 and 152 of the Criminal Code, requiring an even more precise expert analysis of which specific breach caused which specific result, avoiding generic attributions or liability based on mere hierarchical position.

Position of Guarantee, Delegation of Duties and Attribution to Legal Persons

The core of the defence in these offences is determining who actually held the position of guarantee over safety. Article 316 of the Criminal Code punishes those legally obliged to provide preventive means, which does not automatically mean the company's top management: the safety duty may rest on the employer, but also on middle managers, supervisors, site managers, safety coordinators or prevention technicians, depending on the real allocation of functions. Proving that the accused was assigned neither the duty nor the means to fulfil it is frequently the soundest path to acquittal.

Delegation of functions transfers the duty of oversight to whoever receives sufficient powers, means and autonomy to discharge it. A valid delegation must be effective and not merely nominal: the delegate must have genuine decision-making capacity and resources. The defence documents the delegation chain (organisation chart, powers of attorney, budget allocation, designation of preventive resources) to place liability where it belongs, although this does not wholly relieve the delegating party of its residual duty of selection, provision and control, a duty that must also be analysed precisely to avoid automatic attributions.

Where the facts are attributed to a legal person, Article 318 of the Criminal Code does not establish the company's criminal liability through Article 31 bis, but lays down a specific rule of imputation: the penalty is imposed on the administrators or service managers responsible for the facts and on those who, knowing of them and being able to remedy them, failed to adopt measures to do so. It is therefore a rule for identifying the responsible natural person within the organisation, which opens a central line of defence: proving genuine lack of knowledge, the impossibility of remedying, or the diligent adoption of measures within one's own sphere of competence.

Contributory Conduct, the Benefit Surcharge and Limitation Periods

The worker's own conduct may bear on criminal liability. Although the safety duty lies with the obligor and the worker's carelessness does not exonerate him outright, reckless behaviour, the deliberate disregard of clear instructions or the misuse of a properly provided protective means may break or mitigate the causal link and place the result outside the protective scope of the rule. The principle of trust and permitted risk also operate here: not every exposure to an inherent, socially tolerated occupational risk amounts to the serious and concrete danger the offence requires.

It is essential to separate clearly the different consequences a single accident may trigger. Criminal liability (the penalty under Articles 316, 317 or 318 of the Criminal Code) is independent of the civil liability arising from the offence (compensation for the damage) and, above all, of the benefit surcharge under Article 164 of the General Social Security Act. The surcharge is an administrative or labour consequence, not a penalty: it increases benefits by between 30 and 50 per cent when the accident stems from a lack of safety measures, falls on the infringing employer and cannot be insured against. Its imposition follows its own track and must not be confused with the criminal sanction.

The relationship between the criminal and the administrative-penalty routes is governed by criminal pre-eminence and the non bis in idem principle: for the same facts, grounds and subject, the penalty and the administrative sanction cannot be combined, with criminal jurisdiction prevailing and the administrative file being suspended. As to limitation, under Article 131 of the Criminal Code the offences of Articles 316 and 317, carrying a maximum penalty of three years' imprisonment, become time-barred after five years; there is no intermediate three-year bracket. The calculation, the acts that interrupt it, and the possibility of a guilty-plea agreement or of suspending the imposed sentence form part of the strategic analysis that must be addressed from the outset of the proceedings.