Article 312 Spanish Criminal Code: Unlawful trafficking in labour

Article 312 punishes unlawful trafficking in labour, the recruitment of persons by offering deceptive or false employment or working conditions, and the employment of foreign nationals without a work permit under conditions which impair their rights.

Wording of Article 312 of the Spanish Criminal Code

Elements of the offence

1. In paragraph 1, an act of trafficking in labour outside the lawful channels of employment intermediation.
2. In paragraph 2, the recruitment of persons or their inducement to leave their employment by means of deceptive or false conditions.
3. Alternatively, the employment of foreign nationals without a work permit under conditions impairing their rights.
4. That the conditions actually impair, suppress or restrict rights recognised by statute, by collective agreement or by the individual contract.

Defence strategy

Impairment of the rights of the worker. The second modality requires not only the absence of a work permit but conditions which impair the rights of the worker. Where the pay, the hours and the safety conditions complied with the applicable agreement, the objective element fails and the matter is an administrative one.

Distinction from trafficking in human beings. Where a purpose of exploitation and one of the means of Article 177 bis are established, that provision applies, with a far higher penalty frame. Delimiting the two is the principal task in cases involving foreign workers.

Deceptive character of the offer. The provision requires the conditions offered to be deceptive or false. A change of conditions after engagement, or an offer which was not fulfilled for economic reasons, does not amount to deception without evidence of the intention at the time of the offer.

Attribution within a chain of contractors. Where the work is performed through subcontractors or agencies, liability must be attributed to whoever set the conditions. The contractual documentation and the actual exercise of managerial powers are the material relied upon.

• Article 311 CP: offences against the rights of workers
• Article 177 bis CP: trafficking in human beings
• Article 318 bis CP: facilitating unlawful immigration
• Human trafficking defence in Spain

This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.