Third-Party Leasing for Prostitution Lawyer (Art. 187 CP)

Third-Party Leasing: The Concept

Third-party leasing is the classic term for the conduct of providing premises so that another person's prostitution may be exercised there. The question of how far a landlord may be criminally liable when the property is used for that activity has generated abundant case law, particularly as to the dividing line between a neutral lease and punishable cooperation in the sexual exploitation defined in Article 187 of the Spanish Criminal Code.

Article 187.1 CP, in its second paragraph (current wording given by LO 1/2015), punishes anyone who profits from the exploitation of another person's prostitution, even with that person's consent, where a circumstance of exploitation concurs (the victim being in a situation of personal or economic vulnerability, or onerous, disproportionate or abusive conditions being imposed for its exercise). The penalties are 2 to 4 years' imprisonment and a fine of 12 to 24 months, together with the aggravated forms of Article 187.2 CP. Third-party leasing may fall within this offence where the landlord adopts an exploitative position.

The Case-Law Dividing Line

The Supreme Court has consolidated the view that not every transfer of premises to persons who engage in prostitution automatically falls within the offence. A lease at market price — with no exploitative surcharge, no control over the activity and no complementary services indicative of exploitation — is atypical. What marks out punishable conduct is the position of exploitative advantage: charging disproportionate sums, control over the person, the imposition of conditions, or involvement in organising the activity.

The Position of the Good-Faith Landlord

The landlord may be in different evidential situations. (1) Total ignorance of the activity carried on at the property: mere ownership generates no liability. (2) Knowledge without additional profit: collecting a market-rate rent while aware of the use does not automatically fall within the offence, absent other circumstances. (3) Additional profit or surcharge derived from the use: a relevant indicator of exploitation. (4) Active control over the activity, conditions or persons: this falls within the offence of pimping. The defense must place the landlord in the most favourable position by establishing good faith.

Commission by Omission & Position of Guarantor

A particularly relevant technical question is the possible commission by omission (Art. 11 CP) of a landlord who, knowing of the exploitation of the persons at the property, keeps the tenancy in place in order to continue collecting rent. The doctrine has debated whether the landlord is a guarantor of the legal interests harmed; the answer depends on the degree of knowledge, the capacity to act and the foreseeability of the result. The defense must analyse this question case by case.

Defense Strategy

1. Lease agreement at market price with standard clauses.
2. Demonstrable lack of knowledge of the activity.
3. Absence of effective control by the landlord.
4. Opposition to confiscation on the terms of Article 127 quater CP, and dispute over the classification between necessary cooperation and complicity.

Procedure and competent court: from the Criminal Court to the National Court

Objective jurisdiction is set by the penalty the law attaches to the offence. Where running, managing or administering premises is reclassified as profiting from the exploitation of another person's prostitution (integrated within the framework of Article 187 of the Criminal Code, carrying two to four years' imprisonment, in its upper half when aggravating factors apply), the Criminal Court hears the case where the abstract penalty does not exceed five years, and the Provincial Court where it does. The Investigating Court of the place of commission directs the investigation, and the intermediate stage refines the facts and the charge before trial.

A relevant jurisdictional nuance arises where the activity is run through criminal organisations operating from abroad while projecting their exploitation onto Spain. In such cases the National Court may hear the matter under Article 65.1.e of the Organic Law of the Judiciary, namely as offences committed outside national territory whose prosecution falls to the Spanish courts. It is worth stressing, to avoid a common error, that this attribution does NOT derive from the rule on effects across more than one Provincial Court, which is reserved for drug trafficking and food or substance fraud. The defence scrutinises the jurisdictional basis invoked, since an improper attribution is a ground for challenge.

Drawing the line with neighbouring offences: trafficking (177 bis), facilitation of immigration (318 bis) and prostitution (187)

Correctly classifying the facts is decisive, because the penalties differ substantially. Human trafficking under Article 177 bis of the Criminal Code, punishable by five to eight years' imprisonment, requires a purpose of exploitation (including sexual exploitation) and typical means of commission —recruitment, transport, harbouring or receipt through violence, intimidation, deception or abuse of vulnerability. The prostitution-related offence of Article 187 requires no such displacement or structure: it punishes the profit obtained by exploiting another's prostitution, a conduct into which the management of premises falls when it goes beyond a neutral lease.

Facilitation of illegal immigration under Article 318 bis protects a different legal interest, tied to migration control and the rights of foreign nationals, and must not be confused with sexual exploitation. The boundary between the three figures is a key area for the defence's analysis: the absence of a purpose of exploitation or of typical means rules out trafficking; the absence of actual exploitation of another's activity moves the conduct away from Article 187 and may place it in the mere lease of premises. A charge that overlaps the three offences without properly distinguishing them is open to challenge.

Evidence and the subjective element: distinguishing a neutral lease from management aimed at exploitation

The evidential core consists in showing that the use of the premises was directed at exploiting another's prostitution rather than at an ordinary lease. Proving that prostitution took place at the premises is not enough: there must be proof of profit-driven management linked to that exploitation —setting rates and shifts, controlling the persons involved, imposing onerous conditions, retaining documents or earnings, or charging disproportionate fees. A neutral lease, at market rent and without interference in the activity, does not satisfy the offence.

In trafficking cases, moreover, the purpose of exploitation must be proven at the moment of recruitment or harbouring, a subjective element of the offence that is not presumed. The defence challenges automatic inferences drawn from mere ownership or administration of the premises, examines the chain of custody of wiretaps and searches, assesses the reliability of testimony and the lawfulness of home entries. The distinction between awareness of an activity and participation in its exploitation is central, and the presumption of innocence requires that each element of the offence be proven beyond reasonable doubt.

Confiscation, limitation period, victim protection, and plea and reparation routes

A conviction for these offences carries the confiscation of the items, assets and instruments and of the gains derived from the activity, under Article 127 of the Criminal Code, reaching income and equivalent assets where the profit cannot be seized directly. The defence checks the proportionality of confiscation, the correct identification of what constitutes proceeds of the offence, and the safeguarding of the rights of good-faith third parties over the premises.

The limitation period for the offence is five years, under Article 131 of the Criminal Code, given the penalty within the Article 187 framework. Victims of sexual exploitation hold a reinforced status of protection and assistance, with measures to avoid visual confrontation and, where appropriate, pre-constituted testimony. In procedural strategy, reparation of the harm and cooperation may operate as mitigating circumstances, and a well-negotiated plea agreement can calibrate the criminal response where the evidence is solid, always after a rigorous analysis of the classification, the individualisation of the penalty, and the ancillary consequences.