Reform of the Criminal Code regarding animal abuse? Not like that, thanks.

Francisca Gutiérrez Jáimez, Lawyer. Member of the Animal Law Commission of the Ilustre Colegio de Abogados de Santa Cruz of Tenerife. Member of INTERcids Legal Operators for Animals. President of the Canarian Network of Lawyers for Animal Welfare and the Environment association

On September 8, 2022, the Council of Government Ministers approved the text of the Organic Law Project to modify Organic Law 10/1995, of November 23, of the Penal Code, on animal abuse, entrusting an opinion by the urgent procedure, in accordance with articles 109 and 93 of the Regulation, to the Commission on Social Rights and Comprehensive Disability Policies. The text was published in the Bulletin of the Congress of Deputies No. 118-1 dated September 12, 2022, granting a term for amendments for subsequent debate in the Congress of Deputies.

Without going into depth into the core of the reform, it is convenient to draw attention to some of the modifications contained in the text of the Bill to amend the Penal Code.

In the proposal of the Draft Law, articles 337 and 337 bis of the current Penal Code are deleted, modifying the heading of chapter IV of title XVI of book II, which is written as "Crimes against flora and fauna"

A new title XVI bis is introduced in Book II, which will be initialed as: «On crimes against animals» which will contain four new articles numbered as 340 bis, 340 ter, 340 quater and 340 quinquies, which will be the ones that regulate animal abuse.

«Article 340 bis.

1. It will be punished with a prison sentence of three to eighteen months or a fine of six to twelve months and with the penalty of special disqualification from one to five years for the exercise of a profession, trade or trade that is related to animals and for the possession of animals which, outside of legally regulated activities and by any means or procedure, including acts of a sexual nature, causes an injury to a vertebrate animal that requires veterinary treatment to restore its health.

If the crime was committed using firearms, the judge or court may impose the sentence of deprivation of the right to possession and carrying of weapons for a period of one to four years.

2. The penalties provided for in the previous section will be imposed in their upper half when any of the following aggravating circumstances occur:
3. Using weapons, instruments, objects, means, methods or forms that could be dangerous to the life or health of the
4. Execute the fact with cruelty.
5. Causing the animal the loss or uselessness of a sense, organ or limb
6. Perform the act by its owner or whoever has entrusted the care of the
7. Carrying out the act in the presence of a minor or a person specially
8. Execute the deed with the intention of
9. Committing the act to coerce, intimidate, harass or produce psychological damage to someone who is or has been a spouse or a person who is or has been linked to the perpetrator by a similar affective relationship, even without living together.
10. Run el done en un event's audience public o spread it a through of information or communication technologies.
11. Using poison, explosive means or other instruments or arts of similar destructive efficacy or not
12. Using poison, explosive means or other instruments or arts of similar destructive efficacy or not

If two or more of the above circumstances concur, the higher degree penalty may be imposed.

3. When, on the occasion of the events provided for in the first section of this article, the death of a vertebrate animal is caused, a prison sentence of twelve to twenty-four months or a fine of eighteen to twenty-four months will be imposed, in addition to the penalty of disqualification. from one to five years for the exercise of a profession, trade or trade that is related to animals and for the possession of animals. 

If the crime was committed using firearms, the judge or court may impose the penalty of deprivation of the right to possession and carrying of weapons for a period of two to five years, without prejudice to the penalty that may correspond in accordance with other precepts of this Code.

When any of the circumstances provided for in the previous section occurs, the judge or court will impose the penalties in its upper half. If two or more of the above circumstances concur, the higher degree penalty may be imposed.

4. If the injuries produced do not require veterinary treatment, they will be punished with a fine of one to three months or work for the benefit of the community of thirty-one to ninety days. Likewise, the penalty of special disqualification from one to three years will be imposed for the exercise of a profession, trade or trade that is related to animals and for the possession of animals.»

Increased prison sentences, but insufficient

The first thing we find is that prison sentences have been aggravated for crimes of animal abuse, increasing from “three months and one day to one year in prison for the current CP” a “a sentence of imprisonment from three to eighteen months” for the case in which the mistreated animal does not die and that in the event of the death of the animal the prison sentences also increase "from twelve to twenty-four months".

As can be seen, the sentence falls short of 2 years and one day, which would almost automatically prevent the suspension of prison entry from taking place in the Spanish courts. Clearly, these sentences are insufficient since the 24 months do not exceed 2 years in aggravated cases.

The list of aggravating factors is increased and the penalties will be imposed in their upper half when any of the aggravating factors concur and if two or more concur, "it may" - or not - impose the higher penalty in terms of deprivation of liberty. In this case, the penalty, at the discretion of the judge since it does not have to be applied as it is optional, could be imposed in a range that would be between 24 months and one day at its lower limit and up to 36 months at its upper limit. In the event that the higher degree sentence is applied, this does not guarantee an entry into prison either, since the lower sentence does not reach two years and one day because prison terms for months are computed at a rate of 30 days per month, this means that the lower limit of those 24 months and one day yield a sentence settlement of 721 ((24 × 30 + 1) days compared to 731 (365 + 365 + 1) days that yield the two years plus 1 day .

I change the prison sentence for a fine

However, the most striking thing about this reform is that it modifies the single prison sentence that is contemplated in the current Penal Code and dangerously opens the door so that the custodial sentence can have a fine as an alternative, also doing so in all modalities. of the crime of animal abuse. A fine that is mostly going to be the one proposed by the Prosecutors, the investigated and which the judge will presumably choose more often than desirable, since the current trend is a systematic suspension of entry to prison for this type of crimes. Let us remember that the suspension is optional and in the Latest News it is applied automatically, so the result of systematically applying this alternative fine penalty is predictable even in the most despicable and serious cases of animal abuse.

This measure will lead to greater impunity far from increasing the protection of animals against abuse, where fines are reserved for minor crimes. They represent a real setback to the rights of animals in addition to finding that the administrative sanctions were greater than the judicial fines.

The fine penalties contemplated in the Penal Code in article 50 are established in the amounts from 2 euros to 400 euros per day. The usual according to the experience in which the courts impose penalties mostly between 4 and 8 euros on average per day of fine.

¿Why this new and surprising penalty of a fine as an alternative to the prison sentence in the Penal Code Reform?

Perhaps we have the answer in the explanatory statement:

"In terms of proportionality and transparency, no significant administrative burdens are generated, resulting in the proposed legal modification being proportional to the objective pursued, since at the same time as the number of aggravating circumstances increases the fine is contemplated as an alternative penalty, and efficient as it does not entail an increase in public spending. Likewise, in the elaboration of this regulation, citizen participation has been made possible in the different phases of its elaboration, with full access of citizens to all the documentation of the procedure, which has implied a considerable number of contributions for the drafting of the text. definitive."

From this it follows that the legislator, the Government, considers the fine as an efficient measure to avoid increasing public spending. In other words, the alternative penalty of a fine is introduced for economic reasons, which reinforces the thesis that the fine will be the preferred penalty over prison.

The penalty of a fine is regulated in article 50 of the CP where it is established that the penalty of a fine will consist of the imposition of a pecuniary sanction on the convicted person. The interest generated by this money that is deposited in the accounts of the courts throughout Spain goes to the General Secretary of the Treasury of the Ministry of Economy and money from the account is kept entirely by the Treasury.

Extension of aggravating circumstances

The aggravating circumstances in which the sentence may be imposed in its upper half are expanded, as something positive of the reform. But this list is overshadowed when that "possible" penalty that could exceed two years and one day when two or more aggravating circumstances concur, may have the penalty of a mere fine as an alternative.

 Inclusion of vertebrate animals

This reform includes the rest of the vertebrates that lived in the wild or are wild animals in freedom, although it leaves out other animals that have been scientifically proven to have levels of consciousness, such as cephalopods. This inclusion is still positive, although it should be broader. It is a pity that this inclusion is opening the door to alternative sentences of mere fines and that the feeling is, not that wild and wild animals are included under the umbrella of criminal protection, but that all of them are excluded from the current protection so that their mistreatment may have a fine as an alternative penalty.

Veterinary treatment requirement

The need for veterinary treatment to cure injuries is introduced for the “criminal type” of abuse, relegating injuries that heal by themselves to a minor offense with a fine. This is a step backwards with respect to the current Penal Code that punishes the injury that occurs and also does not exclude psychological injuries that could be caused to the animal as a result of mistreatment.

We might even have cases of zoofilia where no injury is caused to the animal that does not require veterinary attention, such as inflammation or minor injuries, which would be punished with a mere fine of one to three months, and even worse if you have sexual relations with an animal and are not causes injury would be decriminalized and without conviction.

This happens with the mistreatment of work, although it is cruel, that with this reform of the Penal Code it would also be decriminalized by not requiring veterinary treatment. Let's take for example a person who takes a puppy and repeatedly introduces it under water (doing the classic "drowning" in plain words) causing suffering with a sensation of suffocation and drowning, but if the animal does not drown, even if it is 100 times the that repeats the action, this conduct is not worthy of criminal reproach with this reform.

«Article 340 ter.

Whoever abandons a vertebrate animal that is under their responsibility in conditions that could endanger its life or integrity will be punished with a fine of one to six months or work for the benefit of the community from thirty-one to ninety days. Likewise, the penalty of special disqualification from one to three years will be imposed for the exercise of a profession, trade or trade that is related to animals and for the possession of animals.»

The fine is not increased for the current crime of abandonment, it is still considered a minor crime and a mere risk to the life or physical integrity of the animal as in the current Penal Code. The special disqualification for the exercise of a profession, trade or trade that is related to animals and for the possession of animals is increased, which is a positive modification as far as the disqualification is concerned.

«Article 340 quater.

1. When, in accordance with the provisions of article 31 bis, a legal person is responsible for the crimes included in this title, the following penalties will be imposed:
2. A fine of one to three years, if the crime committed by the natural person has a prison sentence of more than two years provided for in the law.
3. Fine from six months to two years, in the rest of the
4. Following the rules established in article 66 bis, in cases of liability of legal persons, the judges and courts may also impose the penalties set forth in article 7, paragraphs b) to g). »

Fine penalties are introduced for legal persons, although no prison sentence for those directly responsible.

 «Article 340 quinquies.

The judges or courts may adopt any precautionary measure necessary for the protection of the assets protected in this Title, including provisional changes on the ownership and care of the animal.

When the penalty of special disqualification for the exercise of a profession, trade or trade that is related to animals and for the possession of animals falls on the person who had assigned the ownership or care of the mistreated animal, the judge or court, ex officio or at the request of a party, will adopt the pertinent measures regarding the ownership and care of the animal.»

The opportunity for definitive confiscation of mistreated animals from their abuser is lost. With which they will be able to return when their sentence of disqualification for keeping animals ends. This is another step backwards in this reform.

Conclusion

The Organic Law Project for the modification of Organic Law 10/1995, of November 23, of the Penal Code, whose processing has been carried out in parallel, the Law Project for the protection, rights and welfare of animals, has not had the same publicity and promotion by the Government as this latest bill. On the contrary, it has been carried out silently, creating confusion in the public that a single rule was being processed, we do not know for what purpose.

This Reform of the Penal Code is not beneficial for animal protection and represents a serious setback with the current text in force due to the following:

• It does not respond to the indignation of today's society and is not in accordance with the explanatory statement.
• The increases in prison sentences are insufficient and do not guarantee in any case the entry into prison of the abuser, even in cases of abuse where there are two or more aggravating circumstances.
• It introduces a new punitive technique, with respect to the current one, which allows prison sentences to be changed to a fine.
• It does not contribute to the reduction of crimes by applying penalties of fine without dissuasive purpose.
• It decriminalizes the mistreatment of work, including acts of bestiality with animals.
• It does not regulate the definitive confiscation of animals, which once they serve their sentence may return to the abuser.
• Reduces cases of abuse compared to the current penal code

These are bad times for the criminal protection of animals. Reform of the Penal Code in matters of animal abuse? No, please, thank you very much.