The Government is implementing a reform of the Penal Code to increase the penalties for animal abuse, include crimes against unprotected wild animals and introduce aggravating circumstances for the most bloody cases. It is a parallel legislation to the animal protection law that is processed at the same time. The norm, promoted by the General Directorate for Animal Rights (Unidas Podemos) and the Ministry of Justice (PSOE), is in the parliamentary process, so it may still undergo variations. Meanwhile, the General Council of the Judiciary (CGPJ) has approved this Thursday a report in which it criticizes some of its aspects, such as the disproportionality of some sentences and that all vertebrate animals are protected, which according to this body can generate problems public health or environmental These are the keys and doubts of the standard, as it is written at this time.
How much do the penalties for animal abuse increase?
The Criminal Code, in its article 337, already includes the mistreatment of domestic animals or animals that live under human control, when they are mistreated unjustifiably and injuries occur. The prison sentence for injuries is up to 12 months, and up to 18 if the death of the animal occurs with aggravating circumstances (such as cruelty or in the presence of a minor). Zoophilia and sexual exploitation are also punished.
The reform proposes doubling the maximum sentences, so that the punishment for the death of an animal would be 12 to 24 months in prison (or a fine of 18 to 24 months), and if two aggravating factors come together, it could be extended up to 36 months (three years). ) from prison. This is a historical claim of animal and environmental organizations. Lawyer María González Lacabex, a member of Intercids (an organization that brings together judges, prosecutors, lawyers and police for animal rights), points out that the fork is being extended for especially serious cases, such as violent and cruel mistreatment to several animals, “because now there is a feeling of impunity in these bloody cases.”
On the other hand, the CGPJ report states that “the bill does not achieve what it announces, since although both in the case of injuries and in the case of the death of the animal the prison sentences are slightly increased, in both cases it is still maintained alternative way the penalty of a fine”. In any case, the Council warns of the “danger” involved in “linking the possible substitution or suspension of custodial sentences with criminal impunity”. “We must not forget that the suspension or substitution of custodial sentences is not obtained automatically (…) but compliance with the requirements must be verified and their origin weighed,” the text states.
Sergio García Torres, general director of Animal Rights, responds that the fact that the possibility of substituting the prison sentence for a fine was included was an imposition of the Ministry of Justice, which co-sponsors the norm. “From United We Can, amendments have been proposed so that this is not the case, and that at least in serious crimes there is no option of a fine, and parties such as ERC, Bildu, Junts or Ciudadanos have presented amendments along the same lines.”
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What are the new aggravating circumstances?
The aggravating circumstances of the current Penal Code occur when weapons, objects or methods dangerous to the animal are used in the mistreatment, if there is cruelty, when the animal is caused to lose a sense or main organ, and if it is carried out in the presence of a minor.
The reform expands these circumstances to adapt to more situations: in addition to the four previous ones, it includes aggravating factors if the mistreater is the owner of the animal, if it is done for profit, if the act occurs to harm a partner or ex-partner ( vicarious violence), if it is done in public or disseminated through social networks, or if poison or explosives are used.
The CGPJ report considers that the precept is formed “by a heterogeneous variety of generic circumstances […] thus causing a hyper-aggravation of the conduct that may affect the principle of proportionality”.
González Lacabex —who also founded Animalex, an expert firm in animal law— explains that “judges and prosecutors found the current maximum sentences scarce, so it is important that there are good aggravating circumstances to be able to correctly punish the most serious cases.”
Why are all vertebrates protected?
Criminal law now protects domestic animals, those that are habitually domesticated, other animals that live under human control and, in short, anyone that does not live in the wild. The proposed reform extends the protection to all vertebrate animals, excluding only insects, arachnids, crustaceans and some marine animals. The CGPJ report warns that this broad scope of protection “poses important problems in reconciling the protection of animals with the protection of other legal rights, such as public health or the environment.” Sergio García Torres, from Animal Rights, explains that “the crime is committed in any action not covered by legal provisions or regulations, so there is no danger of collision with health, consumer or safety issues.”
The expert González Lacabex points out that this change comes to cover the current gap that exists when a wild animal, such as a wild boar or a fox, is tortured, as we have seen in some videos published by hunters. “This could not be punished as mistreatment because they are not animals under human control, and crimes against wildlife cannot be applied to them either because they are not protected species. With the new wording, these types of cases will not go unpunished.”
José Manuel Ríos Corbacho, professor in the master’s degree in Animal Law at the Autonomous University of Barcelona, sees it as positive to make a title of his own in the Penal Code to make a crime against animals “to protect animal welfare, which includes physical or mental health , life, and even dignity, because they are already sentient beings”.
Will I be able to kill a rat that enters my house?
Rats, which now do not enjoy any type of protection, will have it with the new wording. The CGPJ document indicates that the defense of these legal rights such as public health “will come into conflict with the protection of the life of the vertebrate animal”, as could happen precisely in this case or in the face of a plague of rodents.
García Torres defends that “article 20 of the Criminal Code already includes a large catalog of situations that make the investigating judge assess what may or may not be a crime, without a doubt this would not be a crime of animal abuse.” Ríos Corbacho, who is also a professor of Criminal Law at the University of Granada, responds that it would not be a crime: “the law is common sense. A rat in a house is a matter of public health, because it can cause illness, or bite your child or your dog. Article 20 limits the crimes that may occur. Animals must be protected reasonably.”
González Lacabex points out that the rats will be protected. “Whether his death can be included as a crime or not will depend on the circumstances in which it occurs and that in each case must be assessed by the judge. For example, if it is done as part of a regulated activity (such as pest control), it would be excluded as a crime. If, for example, it takes place in the domestic sphere and in a timely manner, the exemptions provided for in article 20 of the Penal Code can effectively be applied, such as insurmountable fear or the state of necessity. Circumstances that, I insist, must be appreciated in each case by the judge”.
Is there disproportionality?
The CGPJ’s assessment considers that the reform “may compromise the principle of proportionality”, since the penalty for a crime of injuries to vertebrate animals that do not require veterinary treatment and that of the minor crime of injuries to people who do not require medical treatment is the same: a fine of one to three months, although the first is classified as less serious and the second, light. Another case mentioned in the report is the penalty for mistreating an animal to harm your partner or ex-partner, which is more punishable than the light crime of coercion, light threats, injuries that do not require medical treatment or mistreatment work in the field of violence against women. “The penalty range provided for minor injuries to vertebrate animals, in the case of work for the benefit of the community, is higher than that provided for minor injuries in domestic matters and even in matters of gender violence,” warns the Council report .
“Comparing penalties contains a trap,” criticizes the expert González Lacabex. “The current Penal Code punishes a theft of less than 400 euros the same as punching someone in the face. Shouldn’t an assault on a person be more serious than a minor damage to property? In fact, he continues, with current legislation, using poison in hunting entails two years in prison even if no animal dies, a much higher penalty than the aforementioned crimes. In her opinion, the aggravating circumstance for vicarious violence is positive: “it deserves greater reproach that, in addition to mistreating or killing an animal, it is done to harm another human being.”
Professor Ríos Corbacho points out that the current Penal Code has inconsistencies: “sexual assault is punishable from 6 to 12 years and homicide, from 10 to 15 years. It can happen that a rape is penalized more than a homicide and that does not make sense. In his opinion, “it is true that the reform can break the principle of proportionality, since when it talks about minor injuries to an animal it includes a fine of one to three months, and it is structured the same as in humans. But on the subject of injury and death there is no bankruptcy. The maximum penalty for killing an animal with aggravating circumstances would be 36 months in prison, while a person is 10 to 14 years.”
Is there a conflict with hunting?
The CGPJ report considers that there will be conflicts with crimes related to the protection of flora and fauna, which are not affected by the future reform. “It is possible that there will be a conflict of rules” for the new crime of killing a vertebrate animal “with the existing crime that punishes hunting or fishing protected species, endangered species or non-protected species, when Hunting or fishing is expressly prohibited by law.
García Torres points out that hunting is excluded from the norm because it is a legal and regulated activity, “so there would be no competition for crimes, unless the judge deems it necessary.” Meanwhile, the lawyer González Lacabex points out that the contest of rules is provided for in the Criminal Code, which establishes how they are resolved, and that in some cases two crimes can occur at the same time.
What behaviors are left out?
González Lacabex criticizes that with the current reduction there are behaviors that are now criminal that would cease to be, such as cruel mistreatment of animals, regardless of whether injuries have been caused. The reform only contemplates penalties if there are injuries. Animal Rights responds that amendments have been presented so that at least the residual nature of these crimes is maintained. The same thing happens with the sexual exploitation of animals, which now is a crime and in the reform it would only be so if they are injured. Animal Rights also intends to include it in the amendments.
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