El maltrato animal en el código penalanálisis, aplicación y propuestas

Abstract

This PhD dissertation analyses the crime of animal abuse in Spain, included in Organic Law 1/2015, of 30 March, which modifies Organic Law 10/1995, of 23 November, of the Criminal Code. After a brief presentation of the historical background, social and scientific changes that have led to an increase in sensitivity towards animals, and the different parliamentary procedures aimed at considering animals as sentient beings and not objects, the most relevant issues of the offence are examined, such as the protected legal right, the material thing, the typical conducts, or the different aggravations. Likewise, the crime of animal abandonment is studied. For the different doctrinal and jurisprudential positions on the matter, some references in comparative law and possible points for improvement in an eventual reform are set out. Finally, it analyses the recent overhaul of the Civil Code and the Mortgage Law, which recognises animals as sentient beings, the forthcoming reform of the crime of animal abuse in the Criminal Code and the Draft Bill for the Protection, Rights and Welfare of Animals, making a final proposal for the alternative wording of articles 337, 337. Bis and 337 of the Criminal Code. KEYWORDS: Animal mistreatment, animal abandonment, animal law, animal abuse, criminal responsibility, criminal process, animal, sentient beings, penal code. METHODOLOGY: Study of legal bibliography, specialised journals, and jurisprudence. Attendance and participation in courses and lectures on animal law and writing of doctrinal work for publication in a technical journal. CONCLUSIONS: 1. The latest advances in biology and animal ethology provide scientific evidence of the capacity of animals to have complex thoughts, to feel physical pain and suffering or to carry out behaviour that is sometimes comparable to human behaviour, increasing the demands for their recognition as sentient beings, an issue with legal and bioethical implications. 2. This has become evident in Spain in Law 17/2021, of 15 December, amending the Civil Code, the Mortgage Law, and the Civil Procedure Law on the legal status of animals, which regulates issues such as the fate of animals in the event of divorce or the impossibility of mortgaging them or conceiving their offspring as fruit. 3. At the penal level, it is regulated in Articles 337 and 337 bis of the Penal Code, maintaining its location under the heading "Crimes relating to the protection of flora, fauna and domestic animals", inferring a desire of the legislator to protect the environment from a human point of view that today seems to have been superseded by the desire to protect the animals themselves, focusing the protected legal good on animal welfare both in the process of their life and in their death and the dignity of the animal as a living being. 4. The offence will raise doubts about the concurrence of cruelty or the possibility of commission by omission, understanding that both can occur in the case of serious and conscious disregard for the duties of care inherent in possession of the animal, as well as psychological mistreatment, which must be assessed as an indication. 5. The basic type of sexual exploitation will be punishable but currently seems to include an economic return. It is more advisable to punish "conduct of a sexual nature" that involves injury to the animal. 6. The aggravated type will include different motives, depending on the method chosen or the result obtained, being currently insufficient to cover different forms of habitual wrongdoing. 7. Animal abuse as a form of psychological abuse of women is proposed as a cause of aggravation of the crime of gender violence. This proposal is incongruent with the greater protection intended to be given to the animal or with the principle of non-bis in idem. 8. Causing the animal’s death will be a motive for aggravation. Still, it ignores certain increases in the level of disvalue, and it is proposed that epigraph 337.2 should become 337.3 and vice versa. The possibility of continuous commission and aggravating the offence by a high number of mistreated animals will also be considered, rejecting the current reform proposal of real concurrence. 9. The imposition on the active subject of disqualification from exercising a profession, trade or trade related to animals and keeping animals is optional and difficult or impossible to control. Precautionary measures and the so-called "confiscation" of the animal become important and must be proportional and consider the animal’s link. The possibility is raised of slightly increasing the penalties so that they can be served or suspended with re-educational measures. 10. The recent Law 17/2021, of 15 December, amending the Civil Code, the Mortgage Law and the Civil Procedure Law on the legal regime of animals will raise certain problems of legal certainty or the principle of presumption of innocence, just as the Draft Bill on the Protection and Rights of Animals, which proposes a change of paradigm on animal welfare but increases legal uncertainty and regulatory dispersion, should be the subject of amendments. 11. The following are proposed: modification of the current articles with a change of systematic location and extension of the material object of the offence to "vertebrate animals", replacement of the term "sexual exploitation" with "acts of a sexual nature", and presumption of psychological mistreatment in certain cases of excesses in training or confinement methods; modification of the location of Article 337.2; raising of the penalty; possibility of a new penalty for "sexual exploitation". 2; increase of the penalty; possibility of simultaneous compliance with re-education programmes; introduction of causes of aggravation: concurrence of high number of animals; profession of the active subject related to animals or if the mistreatment came from the person responsible for their care; capturing and/or dissemination of images of the mistreatment; commission of the offence in the presence of a person in a situation of special vulnerability due to any circumstance and, in any case, when the person is under four years of age; commission of the offence within a criminal organisation; aggravation in the event that two or more of the above motives concur; rejection of the aggravation for commission through other animals or for the value of the animal; criminalisation of commission due to serious imprudence; regulation of the re-educational programmes referred to, establishing a new article 337 ter of common provisions that contemplate the precautionary removal of the animal, the possibility of prolonging the shelter and the definitive removal in the most serious cases.