“Of the crimes against the animals”, it is entitled the Title XVI bis, of the Book II of the Spanish Penal Code (CP). It is a recent Title, introduced by the Organic Law 3/2023, of 28 March, with the intention of adapting the CP to the increasing awareness of the society regarding the legal status of the animals, before mere objects, but now sensing living beings. A journey which was already begun by the legislator with the Law 17/2021, of 15 December, which modified the Civil Code, the Mortgage Law and the Procedural Civil Law, with regard to the legal status of the animals.
That the Title XVI bis was recently created does not mean that the animal maltreatment was not classified as a crime before, rather there has been an increase of the importance granted to the legal good protected, the life, health and integrity, both physical and mental of the animals. Now, it has its own title in the CP, and the punishments have been toughened. The Organic Law 3/2023, of 28 March, sums up in this way the punitive progression of the CP with regard to the animal maltreatment: “The animal maltreatment was included in the Penal Code, as misdemeanor, in 1995. Then, the Organic Law 15/2003, of 25 November, shaped the maltreatment of domestic animals as crime, maintained as misdemeanors determined cases and introduced the abandonment of animals as misdemeanor. Later, the Organic Law 5/2010, of 22 June, and the Organic Law 1/2015, of 30 March, introduced new modifications, which led to the current articles 337 and 337 bis, where are classified the crimes of maltreatment, sexual exploitation and abandonment of animals.”
Let us now mention the more important aspects of the reform of the CP carried out by the Organic Law 3/2023, of 28 March:
– The expression “vertebrate animal” has been introduced, being broadened the protection granted by the CP to the animals. Thereby, not only the domestic animals, tamed or which live with humans are protected, but also the wild animals living in liberty.
– The punishments have been toughened, adapting them to the increasing awareness of the society. Besides, new aggravating factors have been included.
– The possibility of adopting precautionary measures is now contemplated, including a change in the ownership and care of the animal.
– The instrumental violence on animals within the ambit of the gender-based violence has been introduced as an aggravating factor.
Let us now study each of the four articles which form part of this Title XVI bis:
– Article 340 bis:
In the article 340 bis is classified the commonly known as animal maltreatment, regardless of whether it is a domestic animal or not, since all the vertebrated animals which live in liberty are protected too.
The article 340 bis is made up of four points, in the first we find the basic type of the crime of animal maltreatment, in the second an aggravated subtype applicable when any of the aggravating factors mentioned in it concur, in the third another independent basic type punishing the killing of a domestic or vertebrated animal, and a fourth which is an attenuated subtype of the basic type of the first point.
The article 340 bis states:
“Article 340 bis.
1. Shall be punished with the punishment of imprisonment from three to eighteen months or fine from six to twelve months and with the punishment of special disqualification from one to three years for exercising profession, trade or commerce which related with the animals and for having animals whoever outside of the legally regulated activities and by any means or procedure, including the acts of sexual character, causes to a domestic animal, tamed, domesticated or which temporal or permanently lives under human control injuries which require veterinary treatment for recovering its health.
If the injuries of the previous point are caused to a vertebrated animal not included in the previous point, shall be imposed the punishment of imprisonment from three to twelve months or fine from three to six months, besides the punishment of special disqualification from one to three years for exercising profession, trade or commerce related with animals or for having animals.
If the crime is committed using firearms, the judge or court may impose, reasoning it, the punishment of privation of the right to possess or carry firearms from one to four years.
2. The punishments established in the previous point shall be imposed in their superior half when any of the following aggravating circumstances concur:
a) To utilize fireamrs, tools, objects, means, methods or ways which may result dangerous for the life or health of the animal.
b) To execute the fact with cruelty.
c) To cause the animal the loss of a sense, organ or principal limb.
d) To carry out the fact being its owner or having confided the care of the animal.
e) To execute the fact in front of a minor or especially vulnerable person.
f) To execute the fact with a profit motive.
g) To commit the fact for coercing, intimidating, harassing or psychically damaging who is or has been spouse or person who is or has been bound to the author by an analogous relation of affectivity, even without living together.
h) To execute the fact at a public event or spread it through the technologies of information or the communication.
i) To use poison, explosive means or other tools or arts of similar destructive or not selective efficacy.
3. When, as consequence of the facts established in the first point of this article, it is caused the death of a domestic animal, tamed, domesticated or which live temporal or permanently under human control, shall be imposed the punishment of imprisonment from twelve to twenty-four months, besides the punishment of special disqualification from two to four years for exercising profession, trade or commerce related with animals or for having animals.
When, as consequence of the facts established in the first point of this article, it is caused the death of a vertebrated animal not included in the previous point, shall be imposed the punishment of imprisonment from six to eighteen months or fine from eighteen to twenty-four months, besides the punishment of special disqualification from two to four years for exercising profession, trade or commerce related with the animals or for having animals.
If the crime was committed utilizing firearms, the judge or court may be able to impose, reasoning it, the punishment of privation of the right to possess and carry firearms from two to five years.
When any of the circumstances established in the previous point concur, the judge or court shall impose the punishments in their superior half.
4. If the injuries do not require veterinary treatment or the animal has been gravelly maltreated without causing it injuries, shall be imposed the punishment of fine from one to two months or community service from one to thirty days. Likewise, shall be imposed the punishment of special disqualification from three months to one year for exercising profession, trade or commerce related with the animals and for having animals.”
Art. 340.1 bis:
Like we said before, in the first point of the article 340 bis, we find the basic type of the crime of animal maltreatment. Let us now start reading carefully its content, in order to draw its more important characteristics.
As always, we are going to set aside the punishments, for except in the cases that they have suffered an important change, rather they are an element of the criminal policies of the legislator, which in the majority of the cases do not follow any logic, beyond pleasing right-wing or left-wing voters.
Setting aside the punishments, the first that draws our attention, it is the way in which the legislator legalizes some ways of animal maltreatment. This is done through the expression “…outside the legally regulated activities…”. After reading it the first two things that come to my mind are the bullfights and the laboratories experimenting with animals. The former is regulated by the Law 18/2013, of 12 November, which regulates the bullfights as cultural patrimony and the latter by the Royal Decree 118/2013, of 1 February, by which is established the basic norms applicable to the protection of the animals utilized in experiments and other scientific aims, including the teaching.
We continue reading, and we find the behavior punished and the object of the crime. It is punished, whoever “… by any means or procedure, including the acts of sexual character, causes to a domestic animal, tamed, domesticated or which temporal or permanently lives under human control injuries which require veterinary treatment for recovering its health.” Like we can observe, the cover granted by the legislator is wide, not specifying race, species, size or color, all animal under human control, although temporally, it is the object of protection. Nor does it exclude any act, punishing any fact which causes an injury to an animal which requires veterinary treatment to recover its health. Perhaps the more problematic, it is to determine when an injury requires veterinary treatment, in my opinion it should be any injury which requires a treatment that could not be diagnosed or/and applied without the intervention of a veterinarian.
On the other hand, it is evident that it is a crime of result, for without the injuries which require a veterinary treatment, that is the result required by the type, it is not possible to apply this first point.
With regard to the subjective elements of the type, it is a malicious crime, therefore, which requires that the active subject knows the unlawfulness of his act. In general terms, it is said that there is malice when the active subject knows the objective elements of the type and despite of that, he decides to act. In this concrete case, there is malice when the active subject knowingly causes an injury to an animal under his control which requires veterinary treatment. Does it mean that, he should know that his concrete acts will cause an injury to the animal which require veterinary treatment? No, it is enough with knowing that his acts are capable of causing an injury of such importance to the animal. To put it differently, like with the direct malice, in which is not required that the active subject knows with detail all the objective elements of the type, neither is it required for appreciating malice, although eventual malice, that the active subject knows with certainty that his acts will cause the harmful result punished by the norm, being enough with knowing that it is possible this result.
The first point does not end here, because it has two more paragraphs. In the second paragraph of the article 340.1 bis, it is punished the same behavior, but in this case, when the injuries, needing veterinary treatment, are caused to a vertebrated animal not included in previous paragraph. In other words, the injuries have to be caused to a vertebrated animal which is not a domestic animal, tamed, or which lives temporal or permanently under human control, in short, to a wild vertebrated animal which lives in liberty. We should stress that the penal protection is only extended to the vertebrated animal, which are those with backbone or spinal column, including birds, mammals, reptiles or amphibians.
There may exist confusion, between this second paragraph of the article 340.1 bis, and the articles 334 and 335 of the CP. Confusion because the three articles protect species of wild fauna, although the art. 340.1 limited to the vertebrated animals. However, each of them has a different ambit of application, punishing a different behavior. Broadly speaking, on the one hand, the article 334 protects the protected or in danger of extinction wild fauna from being hunted or fished, and the art. 335 do more or less the same but with the species which are not protected or in danger of extinction. And on the other hand, the article 340.1 bis punishes to cause an injury, as animal maltreatment, which requires veterinary assistance. Here we see another important difference, the crimes of the articles 334 and 335 are crimes of mere activity, whereas the crime of the article 340.1 bis is a crime of result. Another question is whether the same behavior can be punished two times, one according to the article 334 or 335, depending of the state of protection of the species, and another according to the article 340.1. The answer is difficult, in the Spanish version I said that no, because it would suppose an infringement of the principle non bis in idem, but now I think that I was wrong, there is an ideal concurrence of crimes, because a fact constitutes two or more crimes, so now the correct answer would be yes.
Beyond that, we do not have much to add to the said before. It is a crime of result, which protects the wild fauna, having as legal good protected the physical and mental integrity of the animals, and malicious, without being possible to commit it by imprudence (art. 12 CP).
And the third and last paragraph of the article 340.1 bis, grant to the judges and courts the possibility of imposing, reasoning it, the punishment of privation of the right to possess or carry firearms, when the facts, both of the first or second paragraph, are committed with firearms. Again, we have the same doubt, is it possible to punish the same facts according to the article 334 or 335 and according to the article 340.1 bis? My personal answer is yes, as an ideal concurrence of crimes, but only if the animal hunted is a vertebrated animal and it suffers an injury which requires veterinary assistance.
Art. 340.2 bis:
Like we said before, in the second point there is an aggravated subtype of the first. The punishments established in the first point must be imposed in their superior half when any of the circumstances which it mentions concur.
The interpretation of these aggravating factors does not seem to provoke many problems. Nonetheless, I have chosen a couple of which I would like to give my opinion. Following the order of the precept, the first is the “g) To commit the fact for coercing, intimidating, harassing or psychically damaging who is or has been spouse or person who is or has been bound to the author by an analogous relation of affectivity, even without living together.” In my opinion, this circumstance should always be an aggravating factor, regardless the relation between the author of the facts and the person taking care of the maltreated animal. To maltreat an animal to coerce, intimidate or harass someone, always, in any case, or without exception, should be an aggravating factor.
The other which I would like to comment is the, “i) To use poison, explosive means or other tools or arts of similar destructive or not selective efficacy.” We have the same problem than before, is there a concurrence of crimes between the articles 334 or 335 and 340.2.bis? or that would suppose an infringement of the principle non bis in idem? The study of law is beautiful because sometimes there is no correct answer, all depends on your skills to defend an idea. In the Spanish version I said that applying both precepts to the same fact would be an infringement of the principle non bis in idem, but again, now I think that I was wrong, there would be an ideal concurrence of crimes, because one fact constitutes two or more crimes. You can be punished for using poison to hunt and you can be punished for the damages caused to the animals during the hunt. Although, if you were not hunting, but just crippling animals because you are stupid, you should only be punished by the article 340.2 bis.
Art. 340.3 bis:
I have decided to classify this third point as another independent basic type, even when both precepts punish the same facts, because the result required by the type is different, it is required the death of the domestic or vertebrated animal, and the punishments have been increased from the base, in other words, without imposing the established in the first point in their superior half or superior degree. In any case, this is more a theorical discussion more than a practical.
In fact, this third point begins with “When, as consequence of the facts established in the first point of this article…”. This means that the typical activity punished in the first and third point are the same, it should not be a regulated activity and the typical result may be achieved by any means or procedure, including the acts of sexual character. What has changed is the typical result, this third point requires the death of the domestica animal, and consequently, the punishments it has associated, since they have been increased.
In essence, the characteristics of the crime established in the first point of the article 340 bis and the established in its third point are the same. Both are crimes of result and malicious crimes, which cannot be committed by imprudence.
Here, the doubt which may arise, is whether the CP is forbidding, through this third point, the traditional slaughter which takes place in many houses of many Spanish towns. No, each autonomous region has regulated it, for example, in Madrid, it has been done through the Order 2138/1996, of 25 September, by the Department of Health and Social Services, regulating the Official Campaign for Home Slaughter of Pigs. Nor has it forbidden the slaughterhouses, they are regulated in the Regulation (EC) nº 1099/2009, of the Council, of 24 September 2009, regarding the protection of the animals during the slaughter, this Regulation was developed in Spain by the Royal Decree 37/2014, of 24 January, through which are regulated aspects concerning the protection of the animals during the slaughter, besides, in Spain has been published the Law 32/2007, of 7 November, for the care of the animals, in their exploitation, transport, experimentation or slaughter with the object of establishing the basic norms for taking care of the animals and a common regimen of infringements and sanctions for guaranteeing their fulfillment, and in 2022 has been published the Royal Decree 695/2022, of 23 August, by which are established measures for controlling the wellbeing of the animals in the slaughter houses through the installation of video-surveillance systems.
Another similarity between the first and third point of the article 340 bis, is that the latter is also formed by more paragraphs sharing the same structure. The second paragraph of the article 340.3 bis CP, punishes the same facts and the same result, but this time the affected animal has to be a vertebrated wild animal. The question here is that, the established in the articles 334 or 335, and the stablished in the article 340 bis, seems to be almost the same, punishing the same behavior. To this problem, that we have encountered before, we have a new one, our previous argument of an ideal concurrence of crimes seems weaker than before, if you hunt or fish an animal (art. 334 and 335 CP), most of the times, includes to kill the animal, then we should understand that with applying the precepts which punish this action, the illicit behavior has been punished altogether. But, there is still another problem, if we understand that there is an ideal concurrence of crimes between the articles 334 or 335 and the article 340.1 bis but not between the articles 334 or 335 and the 340.3 bis, we can be punishing tougher to hunt and hurt and animal than to hunt and kill and animal, something which does not have any sense. Anyway, without thinking further implications, I would say that the same behavior cannot be punished by the article 334 or 335 and the article 340.3 bis, for I would suppose a clear infringement of the principle non bis in idem. Does it mean then, that I am wrong now, and before right, believing correct an ideal concurrence of crimes between the articles 334 or 335 and the article 340.1 bis (when the animal is only hurt)? Maybe the easiest would be to think that to hunt is not the same than to kill, the former a crime of mere activity and the latter a crime of result, compatible between them, again existing an ideal concurrence of crimes. What do you think?
Through the third paragraph of the third point of the article 340 bis, the judges and courts may impose, reasoning it, the punishment of privation of the right to possess and carry firearms, when the facts punished in this third point have been committed using firearms. This is just more gasoline, for our problem distinguishing between the article 334 or 335 and the article 340 bis.
And finally, regarding this third point, its fourth paragraph makes applicable to this third point, the aggravating factors of the second point of the article 340 bis.
Art. 340.4 bis:
In the fourth point of the article 340 bis, we find an attenuated subtype of the basic type of the first point. This is evident for two circumstances, the injuries do not require veterinary treatment, even being enough with gravelly maltreating the anima without causing it injuries, and the punishments have been softened, indeed, the punishment of imprisonment has been suppressed.
Pay attention to the fact that, this attenuated subtype has a double nature, it is going to be a crime of result when the punished is to cause injuries which do not require veterinary treatment, and it is a crime of mere activity when it is punished to gravelly maltreat an animal without causing it injuries.
We should understand that, this attenuated subtype is applicable to both, domestic animal and wild vertebrated animals.
With regard to the subjective elements of the type, it is a malicious crime, like the others, which cannot be committed by imprudence (art. 12 CP).
– Article 340 ter:
In the article 340 ter, it is punished the abandonment of a vertebrated animal by the person in charge of it, without distinguishing between domestic or wild animal. The article 340 ter says:
“Article 340 ter.
Whoever abandons a vertebrated animal which is under his responsibility in conditions that may put into risk its life or integrity shall be punished with a punishment of fine from one to six months or community service from thirty-one to ninety days. Likewise, the punishment of special disqualification shall be imposed from one to three years for exercising profession, trade or commerce related with the animals and for having animals.”
Let us now analyze the objective and subjective elements of the type.
The active subject of the crime has to be the person in charge of the vertebrated animal, therefore, it is a special own crime, since it cannot be committed by anyone.
The typical behavior consists in abandoning a vertebrated animal in conditions which may endanger its life or integrity. According to the Spanish Dictionary of the Royal Academy, “to abandon” is: “To leave alone something or someone getting far from it or not taking care of it.”
Besides, the abandoned must be a vertebrated animal, which, as we saw before, are those with backbone or dorsal spine, this includes birds, mammals, reptiles or amphibians.
The abandonment must put in danger the life or integrity of the vertebrated animal. The most important is that, the type does not require the effective putting into danger of the life or integrity of the animal, like in the crimes of concrete danger, being enough with existing this possibility, therefore, it is a crime of hypothetical or abstract danger. To put it differently, it is not necessary to have put into danger the life or integrity of the animal, it is enough with having existed the possibility of being in danger for understanding the crime consummated.
Pay attention now to this excerpt from the Spanish Provincial Court of Ciudad Real´s sentence number 162/2024: “Those which have been proven fit without doubt in the type of abandonment of the article 337 bis of the CP, which contemplates a crime of danger that does not require of the production of any result, thereby if the active or omissive abandonment determines which the situation of risk is materialized in injuries or death the behavior should be classified as animal maltreatment of the article 337 CP, which is not the case. And it is evident that the abandonment of an animal in a container generates a potential risk.”
Then, if the abandonment is materialized in injuries or the death of the animal, the facts should be punished according to the article 340 CP (before the article 327 CP).
Beyond that, it is a malicious crime which cannot be committed by imprudence. This implies that, the author of the facts must want to leave alone the animal knowing the dangers which are going to threaten it. It is going to be enough with being aware of the dangers which may threaten it (eventual malice).
– Article 340 quarter:
With the article 340 quarter, it is fulfilled the established in the article 31 bis CP, and the legal persons are made liable for the crimes of this Title. The article 340 quarter states:
“Article 340 quarter.
1. When according to the established in the article 31 bis a legal person is liable of the crimes of this title, shall be imposed to it the following punishments:
a) Fine from one to three years, if the crime committed by the physical person has in the law a punishment of imprisonment greater than two years.
b) Fine from six months to two years, in the rest of the cases.
2. Attending to the rules established in the article 66 bis, in the cases of liability of the legal persons the judges and court may impose too the punishments established in the article 33.7, paragraphs from b) to g).”
– Article 340 quinquies:
The article 340 quinquies states:
“Article 340 quinquies.
The judges or courts may adopt, reasoning it, any preventive measure necessary for protecting the goods guaranteed by this Title, including provisional changes regarding the ownership and care of the animal.
When the punishment of special disqualification for exercising profession, trade or commerce related with the animals or for having animals falls on the person who has assigned the ownership or care of the maltreated animal, the judge or court, ex officio or at the request of the parties, shall adopt the pertinent measures regarding the ownership and care of the animal.”
With regard to the preventive measures, they have to be adopted as soon as there are evidences of the commission of the crime (fumus boni iuris) and risks to the restitution of the object of the crime to its original state if it is waited for firm sentence (periculum in mora). These preventive measures can be ordered in any part of the procedure.
Besides, when it is imposed the punishment of special disqualification for exercising profession, office or trade which is related with the animals or for having animals, on the person who has assigned the ownership or care of the maltreated animal, the judges and courts shall agree changes regarding the ownership or care of the maltreated animal.
Víctor López Camacho.
Twitter: @victorsuperlope.
Más en mi website: www.victorlopezcamacho.com