“Of the crimes against the rights of the workers”, is how is entitled the Title XV, of the Book II of the Spanish Penal Code (CP). It is a Title formed by nine articles, each of them punishing a different behavior, although all of them are related with the penal ambit. Let us analyze each one of these articles.
– Article 311:
The article 311 is the first of the articles referring to the crimes against the workers of the Title XV. The last time it was modified was through the Organic Law 14/2022, of 22 December (LO 14/2022), which added the second of the scenarios that currently justifies its application. The own LO 14/2022 recognizes its importance in its exposition of motives when it says that, “The crime established in the article 311 of the Penal Code has been defined by the jurisprudence as “the central type of the Working Penal Law” and “essential core of the penal protection of the work”. It protects the minimal conditions demandable and unwaivable of the labour hiring, a legal good of an undeniable collective dimension. The precept is conceived to guarantee the indemnity of the own labour relation through punishing those behaviors which gravelly affect the working rights and conditions of the workers.”
From the above, we are already able to extract one of the elements of the type, the legal good protected by norm, which, as we saw, is the minimal conditions demandable and unwaivable of the labour hiring. But we cannot continue without first reading this article 311:
“Article 311.
Shall be punished with the punishments of imprisonment from six months to six years and fine from six to twelve months:
1.º Those who, through deception or abuse of situation of necessity, impose to the workers at their service labour conditions or of Social Security which damage, remove or limit the rights which have recognized by legal dispositions, collective agreements or individual contracts.
2.º Those who impose illegal conditions to their workers through their hiring under forms different from the employment contract, or maintain them against administrative requirement or punishment.
3.º Those who give work simultaneously to a plurality of workers without registering them in the corresponding Social Security system or, when applicable, without obtaining the corresponding working authorization, whenever the number of workers affected is at least:
a) the twenty-five percent, in the companies or work centers which give work to more than one hundred workers,
b) the fifty percent, in the companies or work centers which give work to more than ten workers and no more than one hundred, or
c) the totality of them, in the companies or work centers which give work to more than five and no more than ten workers.
4.º Those who in the cases of transfer of business, with knowledge of the proceedings described in the previous points, maintain the referred conditions imposed by another.
5.º If the behaviors described in the previous points are carried out with violence or intimidation shall be imposed the punishments superior in degree.”
At first sight, we can say that the precept has a simple structure, it begins specifying the punishment, and later it enumerates fives behaviors to which it is applied. But we realize another detail which is much more important, each one of the five behaviors which the precept describes can be committed only by a subject with a special quality, he has to be a businessman, this means that, it is a special own crime. The Spanish Supreme Court´s sentence (STS) number 247/2017 of 5 April, expresses: “In relation to the active and passive subjects of these crimes, it is considered that they are special own crimes. In other words, they can only be committed by a businessman, understood by it the natural or legal persons or community of goods which receive the rendering of services by salaried employees”, a situation which does not take place in this case, like rightly the defense of this accused has exposed.”
Pay attention to the fact that the STS aforementioned mainly says what the article 1 of the Labour Code (ET) says, although I prefer the later for being included in a norm with rank of law:
“Article 1. Ambit of application.
1. This law shall be applicable to the workers who willingly render remunerated services under employment and within the ambit of organization and management of another person, either natural or legal, denominated employer or businessman.
2. For the purposes of this law, shall be businessman all the persons, either natural or legal, or community of goods which receive the rendering of services of the persons mentioned in the previous point, as well as from the persons hired for being ceded to client companies by temporary employment agencies legally constituted.”
Another important aspect, which is also common to the five behaviors is that, all of them can be regarded as a crime of mere activity, for the types do not demand any result, thus being enough with carrying out any of the behaviors described by the types, for understanding fulfilled the objective elements of the type.
1.º
Let us study each of the behaviors punished, starting from the first. The first point says: “1.º Those who, through deception or abuse of situation of necessity, impose to the workers at their service labour conditions or of Social Security which damage, remove or limit the rights which have recognized by legal dispositions, collective agreements or individual contracts.”
We have already mentioned, who can and who cannot be active subject, remember that we said that it is a special own crime, which consequently, can only be committed by a businessman. Then, the next thing of which we should talk, are the commissive means, “through deception or abuse of situation of necessity”. According to the second meaning of the Dictionary of the Royal Academy of the Spanish Language (DRAE), deception is: “Lack of truth in which it is said, made, believed, thought or reflected.” Hence, the businessman should lie the worker, either in the motives which justify the measure, or in its legality, or in its consequences.
The other commissive means, is through abuse of situation of necessity. It is true that within the CP there is an exemption, the state of necessity (art. 20.5º CP), which applied exonerates the author of a crime from any penal liability. However, they are different altogether, one is an exemption and the other a subjective element of the type, therefore, we cannot confound them interpreting them in the same way. Everybody knows that, the labour relation that exists between a worker and a businessman is unbalanced, the latter is the owner of the means of production, while the former is obliged to sell his work in order to be able to subsist, to put it differently, the worker economically depends of the businessman, but for the businessman the worker is only other of the means of production which he controls, being able to go to the market in order to replace one for another. Thus, it could be considered, that the worker would be always in a situation of necessity, since he has to accept always the conditions imposed on him by the businessman if he wants to sleep under a roof and have something to take to his mouth. However, this is not the situation of necessity to which the precept refers itself, it has to be one different from the labour relation always implicit in all relation between a worker and a businessman.
After the commissive means, the type mentions the typical behavior, the active subject must impose “impose to the workers at their service labour conditions or of Social Security which damage, remove or limit the rights which have recognized by legal dispositions, collective agreements or individual contracts.” Like before, let us see what the DRAE says about the verb “to impose”. For me, two are the meanings more interesting, the first and ninth. According to the first, to impose is: “To put a burden, an obligation or another thing.”, and according to the ninth: “Said about a person: To make worth his authority or power.”
From both meanings, we must understand that the businessman establishes a condition to the worker without the latter being able to negotiate it, due to the position of domain that the former has upon the latter. Besides, this condition cannot be of any nature, it must be a working or Social Security condition, which damages, remove or limit the rights that the workers have recognized by legal dispositions, collective agreements or individual contracts. This makes us to see another of its characteristics, it is a blank criminal statute which must be completed by the said by others, in this case, with other legal dispositions, collective agreements or individual contracts.
Reached this point, we can mention the STS number 247/2017 of 5 April, which states the elements of this concrete typical behavior: “1) Typical behavior: the imposition of labour conditions or of the Social Security which damage, remove or limit the rights that the workers have recognized in the laws, collective agreements or individual contracts. The defining verb of the penal type is “to impose”, it has to be understood the existence of a situation which remove the capacity of reaction essential for allowing the victim a reaction in defense of his damaged rights. Obviously it is a situation placed outside the legal concepts of violence or intimidation, which if they concurred, would be integrated in the aggravated subtype of the art. 311.3.º -current fourth paragraph after the reform of the Organic Law 1/2015- which is referred to the employment of violence or intimidation.
Obviously, the capacity of choosing rests in the freedom of opting, thus, and concretely in a situation of essential inequality as the labour relation, the term “imposition” to which is referred the penal type does not suppose intimidation or violence, like it has been said, but a situation in which the worker does not have the liberty of opting because when the alternative is to leave the work, it is clear that this is not the fruit of a free option.
Such imposition different from the violence or intimidation suppose that the illegality is made clear to the worker and is not done at his back, imposition which to be penally relevant has to take place, in other words be verbalized through two ways which the penal type demands: the deception or the abuse of a position of necessity.
2) Regarding the deception, the current term after its origin in the old art. 499 bis which is referred to schemes or malicious proceedings.
3) The abuse of the state of necessity has to have more consistency than the derived from the implicit situation of inequality which exists in the labour market between employers and workers, because otherwise, all infringement should have access to the penal reply, even more taking into account the economic crises which has hit especially hard the working class, but this hurting reality cannot be used either for deriving to the administrative sanctioning law situations of clear penal illegality that, would have the damaging effect of provoking a generalized exclusion in favor of the active subject -the employer- of the penal reply and which would transform the system of penal justice into a factor of multiplication of the inequality, only applicable to the less favored classes.
Thus, in no event the situation of necessity may be compered -like the appellant does- with the exemption with the same name of the article 20.4º CP which acts as cause of justification which makes disappear the penal illicitness.
They are two different things -the exemption of state of necessity of the CP and the abuse of situation of necessity of the article 311 CP- of a different nature and intensity, which operate in different spheres.
Regarding the abuse of situation of necessity in which is the worker, it has to be analyzed case by case, since this situation of abuse of necessity can have multiple variants.
A relevant criterion for interpreting what should be understood by “abuse of necessity” is found in the other term to which is bound the “imposition”: we refer to the utilization of deception, thus it can be concluded that for abuse of necessity has to be understood something more than the mere intrinsic inequality which exists in the labour relations, but without reaching an interpretation as restrictive as to convert this penal type into a crime of impossible proof and existence. In other words, into a crime of impossible commission.
Thus, it has to be demanded from an objective point a clear infringement of the workers´ rights with enough penal relevance to justify the answer of the system of penal justice, and on the other hand from a subjective point of view the concrete situation of the workers affected.
4) With the aim of finding a material illicitness which acts as differentiating criterion for separating the penally relevant, from the mere administrative infringements has to be demanded an entity or importance in the privation of the conditions of work and of Social Security. In general, they have to be infringements of the social public order which is projected on the protection of the conditions of work or of Social Security.”
We have left to the end, the subjective elements of the type. Undoubtedly, this is a malicious crime, which cannot be committed by imprudence, since this possibility is not expressly stated by the precept like the article 12 CP demands. On the contrary, we should not discard the possibility of its commission by eventual malice, to put it differently, when the active subject knows the high probabilities that his behavior fulfills the elements of the type.
2.º Let us study the second. Remember that, it was the point which was introduced as a novelty in this article by the LO 14/2022, hence being interesting to return to its exposition of motives in order to find out the motives that the legislator had to include it. This exposition of motive says: “On the one hand, the new precept attempts to cover the loophole of punishability in the linked facts, in general but not exclusively, to new technologies which, through the use of automatized systems, allow the massive lack of fulfillment of the correct use of the employment contract; behaviors which could not be envisaged by the legislator of 1995 but which cannot be unknown by the legislator of 2022. On the other hand, it attempts to guarantee the effectivity of the labour legal system and of its system of administrative control for infringements affecting the rights, individual and collective, of the workers.
The penal system cannot elude its obligations with regard to the protection of these rights, collective and unwaivable, against the gravest attacks and this is why it is proposed the introduction of a new numeral 2.º in the article 311. It is a special type, which limit the ambit of the authorship to those who infringe the rights of the workers; of damaging result, eluding in this way the punitive expansionism and of appraised means, which limits the modus operandi to the spurious utilization of a contract or to the neglect of the calling to adequate itself to the legality which has been made through requirement or penalty to the infringer.”
In short, this new point is above all aimed to the new technologies, but in general is applicable to the fraudulent use of any contract or neglect of an administrative requirement or penalty.
Let us now study the type. The second point says: “2.º Those who impose illegal conditions to their workers through their hiring under forms different from the employment contract, or maintain them against administrative requirement or punishment.”
Let us start with the objective elements of the type. Again, the typical behavior consists in imposing illegal conditions to the workers, but this time with the particularity that these conditions can only be imposed through hiring under forms different from the employment contract, or maintaining them against administrative requirement or punishment. In the former case, the legal dispositions which regulates an employment contract should be infringed, like the disposition of the Labour Code, therefore, again this is blank criminal statute, which should be completed by other legal dispositions. In the latter, undoubtedly there has to be previous administrative requirement or penalty, which has declared as illegal a labour condition imposed by the businessman, without this having retracting himself. Pay attention to the fact that, in this second case, it is easy to appreciate another characteristic which is also applicable to all the typical behaviors regulated in the article 311, and which we have not mentioned yet, in this type of sanctions is even more visible the character of ultima ratio of the penal law, there is a previous administrative requirement or penalty which declares illegal a labour condition, and only from that moment the CP can punish a behavior. What I mean is that, the penal law is only applicable to the gravest behaviors, those which exceed the administrative ambit due to their gravity.
Regarding the subjective elements of the type, we are again before a malicious crime, including the cases of eventual malice, although the imprudences are clearly out of its scope.
3.º
We continue with the third of the behaviors punished by the article 311. Let us refresh our memories: “3.º Those who give work simultaneously to a plurality of workers without registering them in the corresponding Social Security system or, when applicable, without obtaining the corresponding working authorization, whenever the number of workers affected is at least:
a) the twenty-five percent, in the companies or work centers which give work to more than one hundred workers,
b) the fifty percent, in the companies or work centers which give work to more than ten workers and no more than one hundred, or
c) the totality of them, in the companies or work centers which give work to more than five and no more than ten workers.”
The typical behavior consists in, simultaneously giving work to a plurality of workers without registering them in the corresponding Social Security system, or without having obtained the corresponding working authorization. According to the article 22 of the Royal Decree 1258/1987, of 11 September, the businessman must communicate to the Social Security, the hiring and termination of employment of the workers. This article 22 says:
“Art. 22. Communication of hiring and termination of employment of the workers.
1. With independence of the obligation of communicating the affiliation of those workers who are not affiliated, the businessman must communicate to the Territorial Treasuries, Administrations or Agencies of the Social Security of the province where are identified the workplaces, the hiring and termination of employment of the workers.”
For the working authorization, it is also the employer who has the obligation of requesting the authorization for residing and working of the foreign worker. This obligation is established in the article 36.4 of the Organic Law 4/2000, of 11 January: “4. For contracting a foreigner, the businessman shall request the authorization to which is referred the point one of the present article, which in any case, shall be accompanied of the employment contract which guarantees the continuous activity during the period in which the authorization is valid.”
But, not all lack of fulfillment of such obligations by the businessman is punishable according to this precept, only those which exceed the limits mentioned in this third point. This again shows the character of last resort of the penal law. Those cases of lack of fulfilment which do not exceed these limits, should be considered a mere administrative punishment.
On the other hand, this is again a malicious crime, which cannot be committed by imprudence (art. 12 CP), but in which we should not discard its commission by eventual malice.
4.º
The point fourth says: “4.º Those who in the cases of transfer of business, with knowledge of the proceedings described in the previous points, maintain the referred conditions imposed by another.”
Broadly speaking, by business transfer we should understand the cases in which there is a change in the ownership of a company. There is a vital article for these cases, this is the article 44 of the Labour Code, which is more precise: “2. For the purposes of this article, it is considered that there is a succession of business when the transfer affects to an economic entity which maintains its identity, understood as a compound of means organized with the aim of carrying out an economic activity, essential or accessory.”
This article 44 ET, in its first point, also establishes that: “1. The change of ownership of a company, of a workplace or of an autonomous productive entity shall not end by itself the labour relation, being the new businessman subrogated in the labour rights and obligations and of the Social Security of the former, including the compromises of retirement pensions, in the terms established in the specific regulations, and, in general, regarding all the obligations which in complementary social protection the transferor may have acquired.”
Thus, clearly, the new owner subrogates himself, with respect to the former, in all the labour rights and obligations and of Social Security of the company.
In this case, the typical behavior consists in maintaining the illicit conditions, stated in the previous points, by new owner of the company.
Regarding the subjective elements, we repeat the said before, it is a malicious crime, which cannot be committed by imprudence, but which should be possible to commit by eventual malice.
5.º
Lastly, the last scenario regulated in the article 311 is the fifth: “5.º If the behaviors described in the previous points are carried out with violence or intimidation shall be imposed the punishments superior in degree.”
Therefore, the fifth scenario is only, an aggravated subtype of the previous, for the punishment shall be imposed in its superior half (from three years, three months and one day to six years), when there is violence or intimidation.
In my opinion, there is violence, when the physical integrity or property of someone is damaged. And there is intimidation, when the damaged is the psychic of another, for example, by announcing a future damage.
The type does not require any result, thus, this is still a crime of mere activity. Nevertheless, if the violence is materialized, this could be punished separately, for example, as a crime of injuries (art. 147 and following) or of damages (art. 263 CP). The relation between both crimes, in my opinion, should be of a medial concurrence of crimes of the article 77, for the violence is the necessary means to commit the crimes against the workers. With the intimidations the result is the same, though in their case, they should be classified as threats (art. 169 and following) or as coercions (art. 172 and following).
In these cases, the existence of the malice is clear, by the means employed by the businessman to subdue the will of the worker.
– Article 311 bis.
In this article are punished two scenarios, which only affect to foreign workers. The article 311 bis says:
“Article 311 bis.
Shall be punished with the punishment of imprisonment from three to eighteen months or fine from twelve to thirty months, save the cases in which the facts are punished with a graver punishment in other precept of this Code, whoever:
a) Repeatedly, employ or give work to foreign citizens who lack of authorization to work, or
b) employ or give work to a minor of age who lacks of authorization to work.”
After reading the precept, soon we realize that this is another special own crime, for only the businessman can be an active subject. Remember that, businessmen are all those which fit within the definition given of them by the article 1 ET.
Another characteristic which is easily discernable is that, it is a crime of mere activity, for the type does not require any result for understanding fulfilled all its elements.
As we already said, in the article 311 bis are punished two cases which affect to foreign citizens. The first of them punishes whoever, “a) Repeatedly, employ or give work to foreign citizens who lack of authorization to work”.
Remember that, in the article 311.3º we saw a similar case, and that we said that according to the article 36.4 Organic Law 4/2000, of 11 January, the businessman has the obligation of requesting the authorization for residing and working of his foreign workers. But, if we saw a similar case before, what is the difference between them? If previously the limit between the mere administrative infringement and the penal illicit was marked by the number of workers who were in an irregular situation within the company, in this case the criterion of the legislator changes requesting reiteration, this means that the penal illicit can be appreciated even when it is only one the number of workers affected. The next question which may arise is, if there is a great similarity between both cases, which precept should be applied when can be applied both? We find the answer to this question in the own article 311 bis, this article must be applied, save when these behaviors are punished with a graver punishment in another precept of the CP. In other words, if the facts fit within either the article 311 or the article 311 bis, they must be punished according to the first, because they have associated a greater punishment. In reality, this subsidiarity expressly declared by the article 311 bis, with respect to other precepts of the CP, is only an express application of the established in the article 8 CP, where are regulated the rules which must be applied in those cases in which, what is appreciated, is a concurrence of norms and not of crimes.
The second of the scenarios regulated in this article 311 bis, is that the businessman “b) employ or give work to a minor of age who lacks of authorization to work.” Pay attention to the fact that, in this case it is not required reiteration in the businessman´s behavior, therefore being enough with carrying out only one time the typical behavior for understanding fulfilled the objective elements of the type. However, the article 311 bis does not lose its subsidiary character, thus we are going to attend to other precepts of the CP, in order to see if there is any other precept which punishes more severely the facts. The foreign worker is going to be a minor of age, when he has not reached the 18 years of age, by analogous application of the art. 12 of the Spanish Constitution.
There is no doubt that, this is a malicious crime, therefore the active subject should know and want to fulfill the elements of the type, without discarding its commission by eventual malice, when this active subject knows that their fulfillment is probable. There is no doubt either that, it is not possible its commission by imprudence, since the requisites of the article 12 CP are not complied with.
The legal good protected by the norm, are the rights of the foreign workers, understood as a collective.
– Article 312:
The article 312 is formed by two points, being described by each a different criminal behavior, but which share the same punishment. The article 312 says:
“Article 312.
1. Shall be punished with the punishments of imprisonment from two to five years and fine from six to twelve months, those who illegally traffic with labor.
2. In the same punishment shall incur those who recruit persons or determine them to abandon their job offering false or deceptive employment or working conditions which damage, remove or limit the rights which they have recognized by legal dispositions, collective agreements or individual contract.”
Art. 312.1:
In the first point is punished, “those who illegally traffic with labor.” Like we can observe, unlike the previous precepts, it is not required any quality or special requisite in the person who carries out the action, in order to be able to be considered an active subject of the crime. This means, that this is a common crime, which can be committed by anyone.
Another important aspect is that, it is a crime of mere activity, since it does not require any result as an additional element which determines the fulfilment of the elements of the type. More problems arise when we try to ascertain the scope of the typical behavior. There exists illegal trafficking of labor, when someone commercializes with workers without respecting their essential rights recognized by law, collective agreement or individual contract. Therefore, the active subject must obtain some kind of consideration, like a monetary compensation, with the illegal trafficking of workers.
It is possible that some of you may have thought in the temporary employment agencies, for their benefits are obtained, hiring workers who render their services to a third client. However, such behavior does not fulfill the objective elements of the type, since in principle, and unless proven otherwise, their activity is legally regulated and cannot be regarded as illicit.
Undoubtedly, it is required the existence of malice, as an essential subjective element of the type, hence, the active subject must know that his behavior is illicit. We should not discard either, the cases of eventual malice, although the cases of commission by imprudence are outside its scope altogether (art. 12 CP).
The legal good protected by the norm is, the rights of the workers as a collective.
Art. 312.2:
The second point of the article 312 begins remembering us that, it shared the punishment, with the behavior punished in the first point. However, this is more complex, for it describes two typical behaviors: 1) To recruit persons or determine them to leave their job offering false or deceptive employment or working conditions, and; 2) To employ foreign citizens without working authorization in conditions that damage, remove or limit the rights which they have recognized by legal dispositions, collective agreements or individual contracts.
Let us start with the first of them. We observe that this can be divided into two too, although in their case they are really similar, for in some cases, in order to recruit persons, first they have to be convinced of abandoning their job. Then, the typical action consists in recruiting persons or determining them to leave their job offering deceptive or false employment or conditions of work. According to the DRAE, to recruit means: “To reunite people for determined purpose”. Something which perfectly fits within the precept studied, for the workers are recruited for rendering a service, which was not the promised or does not fulfill the promised conditions. This make us to question to ourselves, who can be the active subject, whether he has to be a businessman or not. In my opinion, he has to be a businessman, for who recruits them is with the purpose of giving them work, otherwise the behavior would be the described in the first point, in the other words, in the illegal trafficking of labor. Consequently, this is a special own crime, which can only be committed by a businessman.
On the other hand, to determine a worker to leave his job, in this case, means to convince him, to make him to leave a job for another, but it has to be made, offering a deceptive or false job, or which does not fulfill the conditions promised. For this case, we do not modify our criterion, the active subject can be only a businessman. Again, we should consider it a malicious crime, which cannot be committed by imprudence.
In the second group, there is only one typical behavior, to employ foreign citizens without working authorization in conditions which damage, remove or limit the rights that they have recognized by legal disposition, collective agreements or individual contracts. Here, it is even more clear that the active subject can be only a businessman, according to the definition given by the article 1 ET. Let us analyze now its basic elements:
1) The typical action is to employ, what means to give work according to the criterions of the article 1 ET.
2) The passive subjects can be only foreign citizens who do not have working authorization.
3) The active subject can be only businessman.
4) It is a crime of mere activity.
5) The employment of foreign citizens should entail the removal or limitation of the rights they have recognized in the laws, collective agreements or individual contracts.
6) It is a malicious crime.
7) The legal good protected by the norm is the labour rights of the foreign workers as a collective.
Before ending this article, we can mention a good example of the previous behaviors. Everybody knows that, many women are deceived with the promise of a fair job, for later finding out the hard reality that in order to subsist they have to exercise the prostitution. In these cases, the jurisprudence from the Spanish Supreme Court has determined that, even when these services cannot be the object of an employment contract (art. 1271 – art. 1275 of the Spanish Civil Code), these are penally protected by the precepts of the Title XV of the Book II of the CP. Pay attention to this sentence of 26 March 2019 from the Spanish Supreme Court: “For this reason and in relation with the article 312.2 of the Penal Code there are many precedents in which the businessman carries out activities of prostitution in working conditions which are contrary to the human dignity, disregarding the labour rights of the persons exploited, he commits not only the crime which corresponds for the exploitation of the prostitution but also a crime against the workers´ rights, even when they do not have the necessary conditions to be subjected to a labour relation.
We are going to cite for its expressivity the STS 208/2010, of 18 March which recalls that (citing the STS 372/2005, of 17 March) that, “[…] the behavior described in the article 312.2, punishes the labour exploitation, in any activity by hiring foreign workers, which do not have working authorization, and besides, for distinguishing this behavior from the administrative punishment, the penal law ties a special disvalue which is translated in the fact that the conditions imposed should be notoriously damaging to the worker, in a way that they originate situation of exploitation in the job. It does not matter that the type of work carried out had been the prostitution […].”
– Article 313:
The article 313 may be regarded as variant of the preceding, because there is a great similarity with the behavior described in its second point. The article 313 says:
“Article 313.
Whoever determines or favors the emigration of some person to another country simulating a contract or job, or using a similar deception, shall be punished with the punishment established in the previous article.”
The first doubt that we have reading it, is whether it is a common crime or special own crime. I choose the first option, in my opinion, anyone can influence a worker to make him to emigrate to another country, for later being hired there by a businessman. I do know, that before regarding the behavior described by the point 2 of the article 312, I said that it was a special own crime which can only be committed by a businessman, and at the beginning of this article I also say that the behavior described in this article 313 and the one described by the point 2 of the article 312 are really similar, but the latter is accompanied by the illegal trafficking of labour, which we said was a common crime, something that is not the case with the article 313, and besides, it is a behavior which is also very similar with the established in this.
Let us move on with the objective and subjective elements of the type. The typical behavior consists in determining or favoring the emigration of a person to another country simulating a contract or job, or making use of a similar deception. We already said that, to determine means to influence on a third, making him to adopt the decision which he was influenced to take. On the other hand, to favor, may be seen as to actively contribute to make a third party able to take a decision, like, for example, buying the plane ticket that this third party cannot buy due to economic reasons. The question is, that this third party, either because he was influenced or helped, must leave the country where he is living for another in order to fulfill the objective elements of the type. The determinant is, in order to establish the jurisdiction of the Spanish Courts to try the facts, that the active subject should influence or help the emigration of the third party from Spanish territory (art. 23 of the Organic Law of the Judicial Branch (LOPJ)), regardless whether it is done to make him leave the Spanish territory for another, or another for Spanish territory. Except in the cases in which the article 23.4.j) is applicable: “j) Crimes of constitution, financing or integration in criminal group or organization or crimes committed within them, whenever they are groups or organizations which act with the aim of committing in Spain a crime which is punished with a maximum punishment which is equal or superior to three years of imprisonment.” For in these cases, the Spanish courts are going to be always competent to try the facts.
Another important aspect is that, the commissive means are simulating contract or job or using a similar deception. It is evident that, the contract or job has to be false, besides being valid, any other kind of deception. We have to take into account too, that the deception, either by simulating a contract or job, or by any other way, has to be enough, although the precept does not mention it expressly, in other words, it has to be enough good to provoke an error in the deceived person, attending to both the quality of the deception, as objective element, and to the characteristics of the deceived person, as subjective element. Otherwise, the behavior cannot be considered as penally relevant.
Beyond that, it is a malicious crime, which can be only committed when the active subject knows and wants to carry out the elements of the type. Its commission by eventual malice should not be discarded either.
– Article 314:
In the article 314 are classified the scenarios of labour discrimination for ideology, religion or beliefs, family situation, etc. The article 314 says:
“Article 314.
Whoever produce a grave discrimination in the employment, either public or private, against a person by reason of his ideology, religion or beliefs, his family situation, his pertaining to an ethnic, race or nation, his national origin, his sex, age, sexual orientation or identity or of gender, reasons of gender, of aporophobia or social exclusion, the illness he suffers or his handicap, for having the legal or union representation of the workers, for the kinship with other workers of the company or for the use of some official language within the Spanish state, and do not restore the situation of equality before the law after administrative requirement or penalty, repairing the economic damages which may have derived, shall be punished with the punishment of imprisonment from six months to two years or fine from twelve to twenty-four months.”
Let us start talking about the active subject, is it a special own crime which can be only committed by a businessman? In this case, I think that the answer should be negative. The discrimination can be carried out by anyone with the capacity of making it, as for example, a hierarchical superior, therefore, in this aspect, it can be considered a common crime.
The typical behavior consists in producing a discrimination in the employment, public or private, against a person, for some discriminatory motive. Hence, this is a crime of mere activity, since the objective elements of the type do not require any result. But, besides, for considering the behavior as typical, the situation of discrimination shall be maintained after a previous administrative requirement or penalty, what marks the limit between the simple administrative infringement and the penal illicit.
Concerning the subjective elements of the type, it is a malicious crime, which should be possible to commit through eventual malice, but not through imprudence.
The legal good protected by the norm is the equality of all the workers, a principle which is already recognized by the article 14 of the Spanish Constitution (CE), for all the Spanish citizens and before the law.
– Article 315:
The article 315 of the CP establishes a penal protection for two rights recognized by the CE as fundamental, we are referring to the trade union freedom and the right to streak. The article 315 says:
“Article 315.
1. Shall be punished with the punishment of imprisonment from six months to two years or fine from six to twelve months those who, through deception or abuse of situation of necessity, impede or limit the right to trade union freedom and the right to strike.
2. If the behaviors pointed out in the previous point are carried out with coercions shall be punished with the punishment of imprisonment from one year and nine months to three years or with the punishment of fine from eighteen months to twenty-four months.”
Like we can observe, this article 315 is formed by two points, in the first we find the basic type and in the second the aggravated subtype, depending on whether there have been coercions or not.
It seems that we have to consider this crime as a special own crime, for in principle, the only ones who are able to limit or even impede the exercise of those rights, are the businessmen of the article 1 ET.
Let us now talk about the basic type. The typical action consists in impeding or limiting the exercise of the trade union freedom or the right to strike. To impede means the impossibility of exercising any of these rights, while to limit, seems to have a shorter scope, being enough with hindering the exercise of those right altogether. In my opinion, we can consider this crime as a crime of mere activity, since it is enough with carrying out the action described in the type for understanding fulfilled its objective elements.
The commissive means are also important. Regarding the deception, it has to be enough, to put it differently, attending to its quality and the characteristics of the passive subject of the crime, this has to be regarded as enough to provoke his error, otherwise, it does not seem logical, that the penal law should be in charge of punishing this behavior.
Regarding the abuse of the situation of necessity, this cannot be based on the relation of inequality which implicitly always exists between worker and businessman, being always forced the former to sell his work for subsisting, while the latter is the owner of the means of production, having always the possibility of choosing which worker he hires. The situation of necessity should derive from another cause, thus not emptying the content of this objective element of the type, otherwise, any limitation or hindering of the exercise of the rights to trade union freedom or strike would suppose the application of the type.
Without any doubt, this is a malicious crime, which could be committed by eventual malice, but not through imprudence.
Regarding the aggravated subtype to which we referred before, we already said that the most important is the employment of coercions, being them the cause of the limitation or hindering of the exercise of the rights to trade union freedom or strike. The question which should arise here is, is there a concurrence of norms or of crimes? In this case, it seems evident that the correct option is the concurrence of norms, it does not seem logical to punish the coercions separately, when the article 315 mentions them as one of the objective elements of the type, therefore, we should understand that the application of this precept coverts all the disvalue of the action. Furthermore, if we attend to the rules of the article 8 of the CP for applying the concurrence of norms, it seems possible to apply the first (The special precept shall be applied with preference over the general), and the third (The broader or more complex penal precept shall absorb those which punish the infringements included in this).
On the other hand, the legal good protected by the norm are the rights to trade union freedom and strike of the workers. Although, we cannot forget that only the gravest behaviors which limit or hinder these rights will be punished through the penal order, the rest of the cases are within the scope of the administrative order.
– Article 316:
The article 316, and those articles which complement it, the 317 in which is regulated its imprudent version and the article 318 which establishes the penal liability of the administrators and those in charge of the service when the facts are attributed to a legal person, are the zenith of the Title XV. In some degree, they can be considered the most important articles due to the frequency with which they are applied, if we search jurisprudence about them we are going to find many examples, moreover, there is a Circular from the Public Prosecutor´s Office, the Circular 4/2011, of 2 November, about Criterions for the unity of specialized action of the Public Prosecution regarding workplace accidents (Circular 4/2011), which studies the application of these precepts.
Let us first read the article 316, for later analyzing it. The article 316 says:
“Article 316.
Whoever with infringement of the regulations of prevention of labour risks and being legally obliged, do not facilitate the necessary means for allowing the workers to carry out their activity with the adequate measures of security and hygiene, putting into grave risk their lives, health or physical integrity, shall be punished with the punishment of imprisonment from six months to three years and fine from six to twelve months.”
Let us now study it, part by part, choosing little excerpts. The article 316 begins with, “Whoever with infringement of the regulations of prevention of labour risks and being legally obliged,…” This is the clue that the precept gives us, in order to allow us to find out its active subject, who are those legally obliged? According to the article 14.2 of the Law on the Prevention of Risk in the Workplace (LPRL), the businessman is obliged to guarantee the security and health of his workers in all the aspects related with the work. There is no other disposition clearer in our legal order, however, we cannot forget two things. The first, that the businessman liability is not objective, having to respond always and in any event, no, the businessman is going to be penally liable when he has made also effective his faculties of management in relation with the security. And the second, that even when the businessman is who has the obligation to guarantee the security and health of his workers, this obligation can be delegated, assuming the delegate the liability when effectively he has acquired competences in security and health matters, although the delegator is still in charge of watching that the delegate is properly fulfilling his function, otherwise, being obliged to replace him. Pay attention to these two excerpts from the Circular 4/2011:
– “To the formal criterion of being obliged to adopt measures of security according to the labour regulation has to be added the material requisites of exercising a power of management and autonomy in the taking of decisions referred to the security, since the businessman may have delegated this matter, wholly or in part, to third persons.”
– “In order to understand the delegation of functions in this ambit we have to take into account, in first place, that the legal obligation of delegating is still pertaining to the orbit of competence of the delegator, who, at any time, may regain the faculties delegated for the fulfilment of the obligation. The delegation, in second place, adds, a new position of guarantee by virtue of which situates as formal guarantor the delegate, without this cancelling the one possessed by the delegator, mainly because he has the duty of watching and controlling which obliges him to replace the delegate when he is not fulfilling his obligations. The delegation does not require any formalities, but it does require the effective transfer of powers and faculties which pertain to the delegator, to the delegate.
In any event, and in order to specify if the delegation exonerates from penal liability the delegator, which is one of the most discussed questions, the requisites which have been established by the Provincial Courts have to be taken into account (for example, the Spanish Provincial Court of La Coruña, number 134/2008, of 31 March), which require the concurrence of the following requisites: a) the duty of choice, by virtue of which the delegator has to design a person who has the capacity and enough knowledge to control the source of danger; b) the duty of instrumentalization, which requires that the delegating businessman put at the disposal of the delegate the adequate means and the necessary power to control the source of danger; and c) the duty of control, by virtue of which the delegator must implement the adequate measures of control to verify that the development of the delegated functions is carried out in the way required by the legal obligation.”
These excerpts are important, because besides, they clarify something that we have not mention yet, the delegation of functions by the businessman is not going to exonerate him always of all penal liability, this will only happen when the requisites mentioned by the Circular 4/2011 are fulfilled.
The question may be now, in whom can the businessman delegate? He can delegate in his own workers or in specialized technicians, although they are going to be exonerated from any penal liability only, when the persons into whom they delegate have the adequate means and knowledges. The Spanish Provincial Court of Castellon´s resolution number 2131/2019 says: “Through the delegation are created new positions of guarantee and is broaden the circle of authors beyond the businessman, who by the delegation even may achieve the exclusion of liability in determined cases and conditions, the chosen workers who directly assume the effective control of the risks and the specialized technicians who carry out the same function have to be considered as possible active subject of the crime. The businessman who delegates has to provide the delegates with the means of training necessaries to their work and the material, immaterial and human means. The businessman may be liable for not choosing the suitable persons or for not having provide the aforementioned means.”
Here, we have to take into account the said by the article 30 LPRL. According to this precept, the businessman may designate one or various workers for carrying out such activity, or constituting a service of prevention or contracting such service with a specialized entity alien to the company (art. 30.1 LPRL). He can be personally in charge of the preventive functions, when the company does not exceed the 10 workers, or the 25, whenever the company only has one workplace (art. 30.5 LPRL).
The companies can also subcontract the rendering of services corresponding to their own activity and which are developed in their own workplace, in these cases, the companies shall watch the fulfilment by those contractors and subcontractors of the regulation regarding labour risks (art. 24.3 LPRL).
Then, we now know who are those that can be active subject of the crime, the businessman, and those workers or specialized technicians upon which this businessman delegates.
Notwithstanding all the above, we do not advance yet and we continue with our first excerpt from the precept, “Whoever with infringement of the regulations of prevention of labour risks and being legally obliged…”. Because, we still have things to say regarding it. It says, “…with infringement of the regulations of prevention of labour risks and being legally obliged…” This means that, the article 316 is a blank penal norm which must be completed with others, like the Royal Decree 1/1995 of 24 March, by which is approved the Labour Code; the Law 31/1995 of 8 November of Prevention of Labour Risks, modified by the Law 54/2003 of 12 December; the Royal Decree 39/1997 of 17 January by which is approved the Regulation of Prevention Services; the Legislative Royal Decree 5/2000 of 4 August which approves the Consolidated Text of the Law on Infractions and Sanctions in the Social Order, and the regulations of security from the different labour branches. The extra-penal regulation must determine the measures of prevention of labour risks omitted, the subject obliged to facilitate the means of security and the means necessaries to neutralize the risks.
With general character the businessman has the following duties in with regard to the security, according to the articles 16 to 22 of the LPRL: “a) the duty to assess the existing labour risks: b) the duty to facilitate the individual equipment of protection; c) the duty to guarantee the machines, equipment and tools used by the worker; d) the duty to inform and train the workers regarding the prevention of labour risks; e) the duty of creating a preventive organization; f) the duty of stopping the labour activity in the case of imminent and grave risk; g) the duty of coordinating the preventive activity in the case of contractors and subcontractors; and h) the duty of watching the effective fulfillment of the measures previously adopted.” (Spanish Provincial Court of Castellon´s resolution number 2131/2019).
It is the moment of advancing. The next excerpt from the precept is “…do not facilitate the necessary means for allowing the workers to carry out their activity with the adequate measures of security and hygiene,…”. Here we have the typical behavior, this consists in not facilitating the necessary means for allowing the workers to carry out their activity with the adequate measures of security and hygiene. According to the DRAE, the verb “to facilitate” has to meanings: 1) To make easy or possible the execution of something or the attainment of a goal, and; 2) To provide or deliver. We choose the second, because it is more in accordance with the scope of the precept. But we have to take into account too, that the doctrine has made an extensive interpretation of the verb to facilitate, and has added new meanings to it, like to watch or control the effective fulfilment of the measures of security facilitated. The Circular 4/2011 says: “This dynamic and active concept of the verb “to facilitate” was already maintained by the Supreme Court in its sentence 1654/2001 of 26 September, in which it talked about “to control and verify that are fulfilled the requisites to achieve it (of the work) and, among others, those of security and protection of risks generated by the work, a criterion followed by many sentences from the Provincial Courts.”
We cannot forget that the action is negative, in the sense that the type requires the inaction of the active subject, this is another characteristic of this crime, this is a crime of omission of the duty.
What is not provided or delivered, are the necessary means, which broadly speaking must include the material, personal, intellectual and organizational means, that the businessman is obliged to provide to counteract the risks derived from the labour activity. The Circular 4/2011 says that, these measures and means “range from the assessment of risks and planification of the own preventive activity, to the obligations of providing training and information to the worker, passing by the fitting-out of the working places, equipment of individual and collective protection, periodic control of the health of the worker and as many as other personal, intellectual and organizational measures, which affect to his security or are expressly established in the sectorial regulation which regulates the activity.”
And lastly, the article 316 adds, “…putting into grave risk their lives, health or physical integrity,…”. Therefore, this is not only a crime of omission of a duty, but also a crime concrete risk, since the type requires that the omission of facilitating the necessary means of security and hygiene, must derive in a grave risk to the life, health or physical integrity of the workers. Pay attention to the fact, that it is not valid any kind of risk, this has to be grave, hence the penal repression of this behavior only can take place in those cases in which the businessman´s omission, has been of a measure of security or hygiene which causes a grave danger to the life, health or physical integrity of the worker, the rest of the cases can be punished within the administrative order.
Once we have finished the objective elements of the type, we should continue with the subjective. It is evident that this is a malicious crime, but this malice does not consist in wanting to damage the workers, but in the knowledge that the measures of security and hygiene legally imposed are being infringed due to his inaction, and as consequence of this, the life, health or physical integrity of the workers is in grave danger. The doctrine has admitted too, its commission by eventual malice, when the active subject is conscious of the high probability that his omission infringes the rules of security and hygiene, and, he is putting into grave risk the life, health or physical integrity of the workers. This excerpt from the Provincial Court of Caceres´s resolution number 922/2023 is interesting: “The subjective element of the penal type which is analyzed is not integrated, by the intentionality of the behavior, in the sense of seeking the damaging result, it only requires the consciousness of the infringement of the regulations of prevention and the knowledge that the absence of provision of the security elements which are necessary in the execution of the work, as well as the existence of a grave situation of danger created as consequence of this omission, existing doctrinal coincidence in the sense that this penal type perfectly accepts the figure of eventual malice, which is even the more frequent way of commission, therefore it is enough with the accused representing to themselves the degree of danger that their behavior signifies, along the conscience about the high probability that are being infringed rules of prevention of labour risks, besides accepting the situation of concrete danger which can be materialized in result.”
And what happens when the result is materialized? In other words, what happens if as consequence of the businessman omission, the worker loses his life, or is damaged his health or physical integrity? There is going to be a concurrence of norms or crimes depending on the circumstances of the case. There is a concurrence of norms, when the worker who suffers the damages, is the same that was exposed to the danger, a concurrence of norms which must be solved according to the norm of subsumption of the article 8.3 CP, being absorbed the crime of danger by the crime of result. On the contrary, there is a ideal concurrence of crimes, when there is more workers exposed to the grave danger than damaged workers. Regarding this, the Circular 4/2011 says: “These questions were treated by the Instruction 1/2001 of 9 May “about the intervention of the Public Prosecution with regard to the work-related accidents”, which assumed the change in the application of the concurring norms by the Spanish Supreme Court´s sentence number 1188/1999 of 14 July, which establishes that, “when as consequence of the infringement of the norms of prevention of the labour risks is produced the result that was pretended to be avoided with them (the death or injuries in the worker), the crime of result will absorb the crime of danger (art. 8.3 CP), as a logical manifestation of the criminal progression; even more when -as is the present case- the result produced (the death of one of the workers) constitutes only one of the possible results of the omissive behavior of the person liable of the measures of security (since -ran, says the court of first instance- in the same situation of danger were working the generality of those who rendered their services in the building work), the thesis assumed by the court of first instance understanding that there was an ideal concurrence of crimes, has to be considered correct.”. This doctrine was reiterated and consolidated by other subsequent sentences (STS 1355/2000, 161/2000 and 2445/2001), and imposed the duty of appreciated the ideal concurrence of crimes (art. 77 CP), between the crime of risk and the damaging result in those cases in which, besides the damaging result produced (death or injuries of one or more workers), other or others were exposed to the same risk.”
Lastly, in relation with the article 316, the last thing we have to mention is the legal good protected by the norm, which is the life, health and physical integrity of the workers as a collective.
– Article 317:
In article 317 are punished those cases in which concurring the objective elements of the type of the article 316, there has been a grave imprudence. The legislator has tried to cover loopholes of impunity, in those cases in which is not possible to appreciate a malicious behavior in the active subject.
“Article 317.
When the crime to which is referred the previous article is committed by imprudence, shall be punished with the punishment inferior in degree.”
Broadly speaking, there exists imprudence when there has been an infringement of the norms of care. But pay attention to the fact that, the type requires a grave imprudence, therefore, the infringement has to be of the more essential norms of care. The Penal Court´s sentence number 27/2019 says: “Like the Spanish Supreme Court´s sentence of 25 April 2005 indicates that, it is grave or rash the imprudence when it supposes a total and absolute omission of the more essential norms of precaution and care. These considerations acquire special importance when the situation of risk created with the imprudent behavior affects to the goods more relevant like the life.”
More concretely, in this case, the Circular 4/2011 says that there is going to be imprudence in “those case in which the subject “legally obliged”, being conscious of the concrete danger created for not adopting the measures of security legally required, rationally and with good reason trusts, on the grounds of objective and objectivable elements, that this danger (not the damaging result, obviously), will not be produce. The imprudence is going to take place, as general rule, when the means have been facilitated, but them were not enough, adequate or in good conditions (STS 1355/2000 of 26 July), and the subject (legally obliged), who knows it, trust that the situation of grave danger, which is represented as possible, will not be produced.”
– Article 318:
In the crimes against the rights of the workers the legal persons cannot be liable, thus, when the facts are attributed to one of them, the persons liable are going to be the administrators or persons in charge of the service, and those who knowing and being able to solve it, do not do it.
The article 318 says:
“Article 318:
When the facts contained in the articles of this title are attributed to legal persons, the punishment established shall be imposed to the administrators or persons in charge of the service who have been responsible of them and to whoever, knowing and being able to solve it, do not do it. In these cases, the judicial authority may order, besides, some of the measures established in the article 129 of this Code.”
In my opinion, the penal liability of the administrators should reach not only the administrator in law, but also the administrators in fact. According to the article 236.3 of the Company Law (LSC), these are “either the persons who in the reality traffic carry out without title, with a null and void or extinguished title, or with another title, the functions of an administrator, as well as, when applicable, that under which orders act the administrators of the company.”
In any event, we cannot consider the penal liability of the article 318 as objective, either the administrators, or persons in charge of the service, or those who knowing and being able to solve it, do not do it, must have capacity for management, know the omissions which infringe the applicable regulations, and adopt a passive attitude.
Víctor López Camacho.
Twitter: @victorsuperlope.
Más en mi website: www.victorlopezcamacho.com