Human Trafficking for Labor Exploitation (Art. 177 bis CP)

Human trafficking for labor exploitation is one of the most serious forms of the offence under Article 177 bis of the Spanish Criminal Code. Unlike offences against workers' rights, here the person is not treated as an employee under abusive conditions but as an object of trade, deprived of their freedom in order to impose forced labor or services. As criminal defense lawyers, we approach the defense of anyone investigated or accused of this offence with technical rigour and an individualised analysis of each case.

What Art. 177 bis CP punishes

Article 177 bis.1 CP punishes anyone who, whether within Spanish territory, from Spain, in transit or destined for Spain, recruits, transports, transfers, harbours or receives a person —including the exchange or transfer of control over them— using one of the following coercive means:

• The use of violence, intimidation or deception.
• The abuse of a situation of superiority, of need or of vulnerability of the victim, whether national or foreign.
• The giving or receiving of payments or benefits to obtain the consent of a person who has control over the victim.

The conduct must be carried out with a purpose of exploitation. In the case at hand, the purpose set out in Article 177 bis.1.a) CP is the imposition of forced labor or services, slavery or practices similar to slavery, servitude or begging. The basic penalty is 5 to 8 years' imprisonment.

Labor exploitation as the purpose of the offence

The offence does not require the exploitation to actually take place: it is enough that the recruitment or transfer is carried out with that purpose. The law specifies that a situation of need or vulnerability exists where the person has no real or acceptable alternative but to submit to the abuse. In practice, these situations are linked to the recruitment of foreign nationals in an irregular administrative situation, lured with false promises of employment and then subjected to exhausting hours, retention of documents, debt bondage or isolation.

The victim's consent is irrelevant where violence, intimidation, deception or abuse of a situation of superiority, need or vulnerability has been used. Where the victim is a minor, trafficking exists even if none of those means is used, provided the conduct pursues a purpose of exploitation. The penalties of Art. 177 bis are imposed without prejudice to those corresponding to the exploitation offence actually committed and to the other offences committed.

Distinction from offences against workers' rights

The core of the defense is often the distinction between trafficking (Art. 177 bis CP) and offences against workers' rights (Arts. 311 to 312 CP), which protect different legal interests and carry very different penalties:

• Art. 311 CP punishes with 6 months to 6 years' imprisonment and a fine anyone who, by deception or abuse of a situation of need, imposes on workers conditions that harm, suppress or restrict the rights recognised by statute, collective agreement or contract.
• Art. 312.2 CP punishes with 2 to 5 years' imprisonment and a fine the illegal trafficking of labour and the employment of foreign nationals without a work permit under conditions that harm, suppress or restrict their rights.

The essential difference is that trafficking requires a coercive means that annuls the victim's freedom and reduces them to a commodity, whereas offences against workers' rights presuppose an employment relationship —albeit abusive— in which the person retains a margin of self-determination. Establishing that the facts fit Arts. 311-312 CP rather than Art. 177 bis CP can radically transform the charge and the penalty.

Penalties and aggravations

On top of the basic penalty of 5 to 8 years' imprisonment, Art. 177 bis provides for intense aggravation. The penalty raised by one degree applies where the life or physical or psychological integrity of the persons concerned is endangered, where the victim is especially vulnerable on account of illness, pregnancy, disability, personal situation or minority, or where the vulnerability arises from an armed conflict or humanitarian disaster. If more than one circumstance concurs, the penalty is imposed in its upper half.

The penalty raised by one degree, together with absolute disqualification, applies to anyone acting taking advantage of their status as an authority, agent or public official. Where the offender belongs to a criminal organisation or association, the penalty is also increased, with a further aggravation for leaders, administrators or those in charge. The provision establishes the criminal liability of legal persons (Art. 31 bis CP) and punishes incitement, conspiracy and solicitation with the penalty reduced by one or two degrees.

Lines of defense

The defense against a charge of trafficking for labor exploitation is strictly technical. Without promising outcomes, we examine the joint presence of the elements of the offence (conduct, coercive means and purpose of exploitation), the distinction from Arts. 311-312 CP, the actual degree of participation of the person investigated and the validity and sufficiency of the evidence, in particular the victim's testimony and its possible pre-constitution, in accordance with the settled case law of the Supreme Court. The classification is always case-specific and requires an individualised study.