In recent times there has been a significant increase in social awareness of animal abuse.
Every year in our country thousands of animals are seriously mistreated, remain tied up or locked up for their entire lives, are neglected or not fed, are beaten, thrown into wells or rivers, hanged, mutilated, and much more.
This scourge has never been as visible as it is today thanks to social media, and fortunately, its spread is helping to create greater collective awareness in defense of those who have no voice.
And it is precisely the echo of this awareness that has led the legislator to consider the domestic animal as a legal asset to which the State must give due protection, since the mistreatment of animals not only reveals an act of cruelty towards certain living beings, but is carried out by taking advantage of their inability to defend themselves and by abusing the superiority of man over the animal.
The latest legislative reform on the matter (in force since July 1, 2015) carried out by Organic Law 1/2015, of March 30, which modifies Organic Law 10/1995, of November 23, of the Penal Code, places the crime of ANIMAL ABUSE in the chapter relating to “Crimes relating to the protection of flora, fauna and domestic animals”, in its article 337, which says:
Anyone who, by any means or procedure, unjustifiably mistreats (by action or omission), causing injuries that seriously impair its health (producing considerable pain or suffering in the animal) or subjecting it to sexual exploitation ( regardless of whether or not it causes suffering to the animal in question, this conduct being considered a crime of mere activity since the production of a material result is not necessary because the mere action already consummates the crime) will be punished with a prison sentence of three months and one day to one year and special disqualification of one year and one day to three years from the exercise of any profession, trade or business related to animals and from the possession of animals.
a) a domestic or tamed animal,
b) an animal that is usually domesticated,
c) an animal that temporarily or permanently lives under human control, or
d) any animal that does not live in the wild.
The penalties provided for the crime of animal abuse as set out in the previous section will be increased by half when any of the following circumstances apply:
a) Weapons, instruments, objects, means, methods, or forms specifically dangerous to the animal's life were used.
b) Cruelty was involved.
c) The animal suffered the loss or impairment of a sense, organ, or principal limb.
d) The acts were committed in the presence of a minor.
If the death of the animal was caused, a penalty of six to eighteen months in prison and special disqualification of two to four years for the exercise of a profession, trade or business related to animals and for the possession of animals will be imposed.
Those who, outside the cases referred to in the preceding sections of this article, cruelly mistreat domestic animals or any other animals in shows not legally authorized , shall be punished with a fine of one to six months. Furthermore, the judge may impose a special disqualification of three months to one year from practicing any profession, trade, or business related to animals and from owning animals.
Article 337 bis of the same Penal Code also states:
Anyone who abandons an animal mentioned in section 1 of the preceding article in conditions that could endanger its life or well-being shall be punished with a fine of one to six months. The judge may also impose a special disqualification of three months to one year from practicing any profession, trade, or business related to animals and from owning animals.
It is encouraging that this latest legislative reform prohibits "unjustifiably mistreating," "cruelly mistreating," and "abandoning domestic animals in conditions that may endanger their life or well-being," but the truth is that we still have a long way to go in this area because:
a) The expression “unjustifiably” used in the basic definition of the crime aims to define the scope of the offense, excluding acts of obvious mistreatment that may be justified by the purpose for which they are carried out. Thus, this clarification prevents the classification as criminal behaviors such as animal experimentation for drug testing and other types of medical or veterinary research, or activities related to the transport or housing (raising livestock in barns or similar enclosures) of animals intended for human consumption (cows, sheep, goats, chickens, hens, pigs, etc.).
b The maximum penaltyfor causing the death of an animal, being less than two years, will generally not result in imprisonment for those without a criminal record (to date, only two people have gone to jail for torturing an animal to death - in both cases convicted by the same judge in the Balearic Islands - one for beating a horse to death and the other for starving a dog to death, as the judge denied them the benefit of suspension of the sentence or substitution by community service).
c) The mistreatment of those animals in legally authorized shows would be exempt from classification as such a crime, even when mistreatment occurs (art. 337.4 Penal Code), clear examples of which are our "national festival", or the festivities of the Bous a la mar, in the town of Denia (Alicante), the running of the bulls of San Fermín, in Pamplona (Navarra) or the embolados bulls, in the town of Medinaceli (Soria).
d) The mistreatment or killing of hunting animals or wild animals or animals living in the wild is not included among the crimes, nor is psychological abuse of animals included.
e) The action or omission that constitutes mistreatment must be unjustified, so, although it is unlikely, if the author explains or justifies his behavior or there are objective reasons that led him to perform that act, he will be exempt from criminal liability.
f) Mistreatment (and the corresponding application of the prison sentence of three months and one day to one year) is defined as a crime of material result, consisting alternatively (1) of causing the death of the domestic animal; or (2) of causing injuries that produce serious physical impairment. Outside of this result (in the case of cruel mistreatment that causes less serious injuries that neither cause death nor serious physical impairment), the penalty provided is only a fine of one to six months.
g) Only abandonment that endangers the life or integrity of the animal is punished, as if this “endangerment” were not already inherent in the very concept of abandonment.
h) Illegal animal breeding is not classified as a crime, despite it having been shown on numerous occasions that it is yet another form of mistreatment due to the deplorable conditions in which the animals are kept in these types of breeding facilities (which breed and sell without a license due to the inaction of the authorities), and even more so if the marketing is carried out through international mafias that send already sick puppies as merchandise and in very poor sanitary conditions, which is why in a large number of cases, the animals end up dying within a few months of life or contracting serious diseases.
i) Nor has it been planned to classify animal experimentation as another form of mistreatment.
These reflections should lead us to the conclusion that the protection of animals remains insufficient, and that a future animal criminal law fundamentally depends on finding a way to understand the animal as a subject of rights or, at least, establishing its own status that identifies it as a living being with certain rights.
Having reached the current level of development in society, we can no longer tolerate certain social and political sectors remaining insensitive to this problem, arguing that such rights do not exist and that demands in favor of animal rights come from isolated "animal rights" groups.
And, to paraphrase Mahatma Gandhi, “a country, a civilization can be judged by the way it treats its animals.”
Olga García
Civil/Criminal Area
Àmbit Assesor
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A Àmbit Assessor, SL has 40 years dedicated to the tax, comptable and labor consultancy of the Pime.
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