Criminal Lawyers in Crimes Against Trade Union Freedom and the Right to Strike (Art. 315 CP)

Crimes against trade union freedom and the right to strike are set out in article 315 of the Criminal Code (CP), within Title XV on crimes against workers' rights. The provision protects two fundamental rights recognised in the Constitution: trade union freedom (art. 28.1 CE) and the right to strike (art. 28.2 CE). The firm acts both for persons under investigation or accused and for workers, trade unions and companies harmed by these conducts, from its offices at Velázquez 27, Madrid.

What Art. 315 CP punishes

Article 315.1 CP punishes those who, through deception or abuse of a situation of necessity, prevent or limit the exercise of trade union freedom or the right to strike. This is not about any labour dispute, but about conduct that significantly curtails the exercise of these rights: pressure on someone who wishes to join a union, covert reprisals against trade union activity, or manoeuvres designed to render a strike call meaningless or to impose abusive minimum services. The legal interest protected is the genuine effectiveness of workers' collective rights against anyone who neutralises them by unlawful means.

Penalties and the LO 5/2021 reform

The penalty for the basic offence under article 315.1 CP is imprisonment of six months to two years or a fine of six to twelve months. Article 315.2 CP aggravates the response where the above conduct is carried out with coercion, raising the penalty to imprisonment of one year and nine months up to three years or a fine of eighteen to twenty-four months. The legislator thus reserves the harsher response for cases where the means employed are coercive rather than merely deceptive or abusive.

It is essential to understand the scope of Organic Law 5/2021, of 22 April (in force since 23 April 2021), which repealed paragraph 3 of article 315 CP. That paragraph contained a specific aggravated form punishing those who, acting in a group or in concert with others, coerced others to begin or continue a strike. With its repeal, that autonomous offence disappears and this specific form of coercion linked to collective disputes is decriminalised. The reform responded to the criticism that the provision had a disproportionate chilling effect on trade union activity and informational pickets.

The practical effect must be made clear: the repeal does not create a space of absolute impunity. The general offence of coercion under article 172 CP remains fully in force; anyone who compels another through violence or intimidation to support or abandon a strike may answer for ordinary coercion where its requirements are met. What changes is the legal classification and the reference penalty. For conduct prior to 23 April 2021 that is tried afterwards, the principle of application of the more favourable criminal law applies, which may lead to acquittal under the repealed provision or to review of the conviction.

Elements of the offence

For the offence under article 315 CP to arise there must first be conduct that prevents or limits the exercise of trade union freedom or the right to strike, which must be significant and not a mere nuisance inherent to the dispute. Second, the requisite means: deception or abuse of a situation of necessity in paragraph 1, or coercion in paragraph 2. Third, intent, that is, knowledge and will to curtail another's right. The case law of the Supreme Court requires a careful distinction between the legitimate exercise of fundamental rights —information, persuasion, calls to join— and unlawful imposition through coercive means, placing the frontier not in the context of the dispute but in the means actually used.

Keys to the defence

The strategy is decided in the early stages of the proceedings. The central lines of defence involve delimiting the legitimate exercise of the right to strike and of trade union freedom against the typified conduct, challenging the presence of the deception, abuse of necessity or coercion required by the offence, and invoking the inapplicability of the repealed paragraph 3 where the accusation rests upon it. In group conduct it is essential to require proof of each person's specific contribution, avoiding generic attributions. For the injured party, the firm articulates the complaint and the exercise of the criminal action, also assessing the remedies available in the labour jurisdiction. If your situation falls within this area, you may call us on 91 078 65 74.