“Of the crimes against the flora and fauna”, is the title of the Chapter IV, of the Title XVI, of the Book II of the Spanish Penal Code (CP). It is the last chapter of the Title XVI, the last of a series dedicated to the protection of a legal good of those denominated “diffuse interests”, in this case the flora and fauna, which is not owned by someone, when it is damaged the society as a whole is the harmed. At constitutional level, this legal good is recognized in the article 45 of the Spanish Constitution.
This Chapter IV is formed by seven articles, although the last two has been recently suppressed by the Organic Law 3/3023, of 28 March, by which was adapted the CP to the increasing awareness of the society regarding the capacity of sensing of the animals, which legally had already given rise to the Law 17/2021, of 15 December, which modified the Civil Code, the Mortgage Law and the Civil Procedural Law, concerning the legal regimen of the animals, requiring the corresponding reform of the Penal Code.
Let us now study the content of each of these articles.
– Article 332:
The article 332 is the first of the article dedicated to protect the flora and fauna, concretely, in its case, the protected is the wild flora. Let us read it:
“Article 332.
1. Whoever, contravening the laws or other dispositions of general character, cuts, chops down, pulls up, recollects, acquires, possesses or destroys protected species of wild flora, or traffics with them, their parts, by-products of them or their propagules, save when the behavior affects to an insignificant amount of specimens and does not have relevant consequences for the state of conservation of the species, shall be punished with the punishment of imprisonment from six months to two years or fine from eight to twenty-four months, and special disqualification for profession or trade from six months to two years.
The same punishment shall be imposed to whoever, contravening the laws and other dispositions of general character, gravelly destroys or alters their habitat.
2. The punishment shall be imposed in its superior half if they are species or subspecies classified as in danger of extinction.
3. If the facts are committed by grave imprudence, shall be imposed a punishment of imprisonment from three months to one year or fine from four to eight months, and special disqualification for profession or trade from three months to two years.”
Art. 332.1:
Let us now begin to analyze its different points. Beginning with the first, it starts with “Whoever…”, this means that it is a common crime, in the sense that it can be committed by anyone, therefore, without requiring to a hypothetic active subject additional qualities, like being an authority or public servant.
We continue reading, and it says “…contravening the laws or other dispositions of general character…”. This indicates that it is a blanket penal norm, thereby being necessary to complete it with other laws, in this case of administrative character, for unveiling its full meaning. This lack of concreteness of the penal norm, has been criticized by some for two motives, for infringing the principle of legality, according to which, the norm shall be enough precise to make understandable to anyone the behavior punished, as well as, for not respecting the Organic Law reserve for the penal norms (article 81.1 of the Spanish Constitution), since it affects to fundamental rights. However, the Constitutional Court has sanctioned this legislative technique, although with some conditions, it has to comply always with three requisites (STC 122/1987): a) that the normative reference has to be express and justified on the base of the legal good protected by the penal norm; b) that the law, besides pointing out the punishment, contains the essential nucleus of the prohibition; and c) it is satisfied the requirement of certainty or, what in constitutional expression already normalized is the same: that “the behavior classified as criminal is enough detailed with the indispensable complement of the norm to which the law is referred, and in this way, it is safeguarded the function of guarantee of type with the possibility of knowledge of the actuation penally ordered”.
The precept also says that, the typical behavior in order to be considered a penal illicit, has to be an administrative infringement too. In the ambit of the protected species of wild flora and fauna, we have to attend to the regional normative, and in more general terms to the Law 42/2007, of 13 December, of the Natural Patrimony and Biodiversity, which in its article 80 classifies the infringements. Here, the principle of minimal intervention of the penal law will be of importance, although it is mostly aimed to the legislator, hence, if the behavior suits the objective and subjective elements of the type, it is going to be penally punishable. Does it mean that a behavior can be punished two times, one in the administrative order and other in the penal order? No, this would infringe the principle non bis in idem, pay attention to this excerpt from the Spanish Constitutional Court´s sentence of 30 January 1981: “4. The general principle of law known as “non bis in idem” supposes, in one of its more known manifestations the not duplicity of sanctions –administrative and penal- in the cases in which is appreciated the identity of subject, fact and foundation without existence of a relation of special supremacy of the Administration -relation of public servant, public service, concessionaire, etc.- which may justify the exercise of the “ius puniendi” by the courts and at the same time the power to impose penalties of the Administration.”
We continue, and we find the typical behavior and the object of the crime. It is punished whoever, “…cuts, chops down, pulls up, recollects, acquires, possesses or destroys protected species of wild flora, or traffics with them, their parts, by products of them or their propagules,…”. We see how the method employed by the legislator for describing the typical behavior, is the same than the one he has employed in other precepts of this Title XVI, enumerating a great variety of actions, in a way that, he has tried to mention expressly all those which may harm the legal good protected.
Regarding the object of the crime, it is the protected species of wild flora, its parts, by-products or propagules. Like with the typical behaviors, the legislator has extended as much as possible the protection of the legal good, expressly mentioning all those elements of the wild flora which may be affected negatively. For all those who do not know it, among which I was included until the Wikipedia told me, a propagule is “any material that functions in propagating an organism to the next stage in its life cycle, such as by dispersal. The propagule is usually distinct in form from the parent organism. Propagules are produced by organisms such as plants (in the form of seeds or spores), fungi (in the form of spores), and bacteria (for example endospores or microbial cysts).”
The question now is, which are those protected species of wild flora? Like we said before, we should look into the regional legislation, but at a more general and national level the more important are, the Law 42/2007, of 13 December, of Natural Patrimony and the Biodiversity, which in its article 56 creates the List of Wild Species in Regimen of Special Protection, which includes species, subspecies and populations deserving a particular attention and protection, as well as those which appear as protected in the European Directives and international covenants ratified by Spain, and the Royal Decree 139/2011, of 4 February, which develops the List of Wild Species in Regimen of Special Protection and the Spanish Catalog of Threatened Species, specifying the species, subspecies and populations integrating it.
Thus, when it is in neither the regional legislation nor the Royal Decree 139/2011, of 4 February, the species of wild flora is not the object of special protection through the article 322, although the same behavior might be punishable according to the administrative order.
Notwithstanding all the above, the own article 332.1 establishes an exception, the behaviors which affect to “an insignificant amount of specimens and does not have relevant consequences for the state of conservation of the species”. Here the judge and courts are going to have a determinant paper establishing which behaviors do affect a negligible amount of species and do not have relevant consequences for the state of conservation of the species. This exception also points out the character of ultima ratio of the penal law, applicable only to behaviors most dangerous to the protected legal good, the rest being reserved to the mere administrative sanctions, which do not affect with the same intensity to the fundamental rights of the citizen punished.
Does it mean a contrario sensu, that the type requires a significant number of specimens affected and relevant consequences for the state of conservation of the species? I, without any doubt, answer yes. Thereby, we cannot consider that we are before a crime of mere activity, but one of result, for to the typical behavior we should add the result required by the type, the affectation of a relevant number of specimens and relevant consequences to the state of conservation of the species.
Regarding the subjective elements of the type, it is a malicious crime, this means that the active subject knows that with his behavior is harming a protected species of wild flora, he is damaging the legal protected by the norm. We cannot dismiss, the possibility of punishing the same behavior in the cases of eventual malice, being enough with the active subject´s knowledge that there exist possibilities of being damaging the objective elements of the type with his behavior, or what is the same, that his going to damage a species of wild flora.
In the case of grave imprudence, when it is omitted the fulfillment of an essential norm imposed by a legal disposition or socially, the facts can be also punished, although according to the said by the third point of this article.
Regarding the legal good, although me mentioned it before, though it is better if we repeat it again, it is the flora, as an integrating part of the environment, a diffuse interest which belongs to the collectivity, and is recognized in the article 45 of the Spanish Constitution.
This first point of the article 332 has a second paragraph too, imposing the same punishments to “whoever, contravening the laws and other dispositions of general character, gravelly destroys or alters their habitat.” However, little we can add to the said until now, beyond the change that there has been regarding the typical behavior.
Then let us sum up the previously explained:
– It is a common crime, in the sense that anyone can be the active subject.
– It is blanket penal norm, which has to completed with others of administrative character.
– It is a crime of result, there has to be a destruction or grave alteration of the habitat of the protected species of wild flora.
– It is a malicious crime, where we should admit its eventual modality. It can also be committed by grave imprudence, by virtue of the established in the third point of this article.
– The legal good protected is, the wild flora, as part of the environment protected by the article 45 of the Spanish Constitution.
Art. 332.2:
In the second point of the article 332, we find an aggravated subtype of the basic behavior established in its first point. The punishments to the behaviors of the first point has to be imposed in its superior half, when they affect species or subspecies of wild flora in danger of extinction.
The species or subspecies in danger of extinction are those established in the corresponding regional legislation and in the Royal Decree 139/2011, of 4 February.
Article 332.3:
The legislator has decided to extent the protection granted to the legal good, the wild flora, when there has been guilt instead of malice. However, not any kind of imprudence is going to be enough to punish the facts according this third point, it is necessary a grave imprudence. We should consider the grave imprudence as the omission of an important norm of care, only the biggest mistake can be the cause of its lack of fulfillment. The norm of care can be imposed by either a legal disposition or socially.
– Article 333:
What is punished in the article 333, is the known as introduction of invading species. Species which vie with the local species for the resources for their subsistence, and which, due to their greater capacity of adaptation to the environment, they end displacing the latter, although in the worst of the cases they can even cause their extinction. A good example of an invading species is the red or American crayfish, which has ended in many cases with the local crayfishes of the Spanish rivers.
The article 333 says:
“Article 333.
Whoever introduces or releases not indigenous species of flora or fauna, in a way that damages the biological balance, contravening the laws or dispositions of general character protecting the species of flora or fauna, shall be punished with the punishment of imprisonment from four months to two years or fine from eight to twenty-four months and, in any case, special disqualification for profession or trade from one to three years.”
Let us analyze the content of this article. The first that we realize is that, it is a common crime, in the sense that it can be committed by anyone, since the type does not require special qualities in the active subject. It just says “Whoever…”.
We continue reading, and the next thing that we find is the typical behavior, the punished is the introduction or releasing of “not indigenous species of flora or fauna, in a way that damages the biological balance…”. Here, I had the doubt of whether classifying this crime as a crime of result or not, for at first sight I thought that the type required the damage of the biological balance, in other words, the result of damaging this biological balance. However, I think that it is better classified as a crime of mere activity, for the simple reason, that the introduction of an invading species is going to alter it, regardless of whether it happens sooner or later, indeed, this is the reason of having a catalog of invading species, like we are going to see later.
Another essential objective element of the type is that, the behavior should be carried out, “contravening the laws or dispositions of general character protecting the species of flora or fauna.” Here should repeat what we said regarding the blanket penal norms of the article 332. Mainly, that a sector of the doctrine has criticized this technique for infringing the principles of legality and organic law reserve, though the Spanish Constitutional Court has backed it, whenever (STC 122/1987): a) that the normative reference has to be express and justified on the base of the legal good protected by the penal norm; b) that the law, besides pointing out the punishment, contains the essential nucleus of the prohibition; and c) it is satisfied the requirement of certainty or, what in constitutional expression already normalized is the same: that “the behavior classified as criminal is enough detailed with the indispensable complement of the norm to which the law is referred, and in this way, it is safeguarded the function of guarantee of type with the possibility of knowledge of the actuation penally ordered”.
The precept also says that, the typical behavior in order to be considered a penal illicit, has to be an administrative infringement too. In the ambit of the protected species of wild flora and fauna, we have to attend to the regional normative, and in more general terms to the Law 42/2007, of 13 December, of the Natural Patrimony and Biodiversity, which in its article 80 classifies the infringements. Here, the principle of minimal intervention of the penal law will be of importance, although it is mostly aimed to the legislator, hence, if the behavior suits the objective and subjective elements of the type, it is going to be penally punishable. Does it mean that a behavior can be punished two times, one in the administrative order and other in the penal order? No, this would infringe the principle non bis in idem, pay attention to this excerpt from the Spanish Constitutional Court´s sentence of 30 January 1981: “4. The general principle of law known as “non bis in idem” supposes, in one of its more known manifestations the not duplicity of sanctions –administrative and penal- in the cases in which is appreciated the identity of subject, fact and foundation without existence of a relation of special supremacy of the Administration -relation of public servant, public service, concessionaire, etc.- which may justify the exercise of the “ius puniendi” by the courts and at the same time the power to impose penalties of the Administration.”
In the articles 64, 64 bis, 64 ter and 64 quarter, of the Law 42/2007, of 13 December, of the Natural Patrimony and Biodiversity, it is regulated all referring to the invading species. For example, by the article 64 was created the Spanish Catalog of Exotic Invading Species, which was materialized in the approbation of the Royal Decree 630/2013, of 2 August. Likewise, we have to take into account that, the Spanish Catalog of Exotic Invading Species can be updated, indeed it has been more than one time, through the procedure established in the article 5 of the Royal Decree 630/2013, of 2 August. Mainly, it is requested a justified request, a technical report with an analysis of risk, a Scientific Committee´s report (tenth additional disposition of the Royal Decree 630/2013, of 2 August), and, after the report from the Committee of Wild Flora and Fauna, it is going to be the Statal Commission for the Natural Patrimony and Biodiversity the one which have to decide whether the Catalog is modified or not.
With regard to the subjective elements of the type, it is a pure malicious crime, pure because it cannot be committed by imprudence. In this case, the introduction or releasing of an invading species is going to be a crime only when the active subject knows that with its introduction is damaging the biological balance. Do not think that, only those who knows from top to bottom the Catalog of Invading Species can be punished, no, this is not an essential requisite, there is malice when in general terms the active subject knows that what he is doing is a crime. Indeed, probably the cases of eventual malice should be included, those in which the active subject knows that there is a possibility of being fulfilling the objective elements of the type.
– Article 334:
The article 334 is destined to protect the protected species of wild fauna, imposing even more severe punishments when the species of wild fauna is not only protected, but, in danger of extinction. The article 334 says:
“Article 334.
1. Shall be punished with the punishment of imprisonment from six months to two years or fine from eight to twenty-four months and, in any case, special disqualification for profession or trade and special disqualification for exercising the right to hunt and fish from two to four years whoever, contravening the laws and other dispositions of general character:
a) hunts, fishes, acquires, possesses or destroys protected species of wild fauna;
b) traffics with them, their parts or derivates of them, o;
c) carries out activities which impede or hinder its reproduction or migration.
The same punishment shall be imposed to whoever, contravening the laws or other dispositions of general character, destroys or gravelly alters their habitat.
2. The punishment shall be imposed in its superior half if they are species or subspecies classified as in danger of extinction.
3. If the facts were committed by grace imprudence, shall be imposed a punishment of imprisonment from three months to one year or fine from four to eight months and, in any case, special disqualification for exercising the right to hunt or fish from three months to two years.
4. It is going to be imposed the punishment of privation of the right to own and carry weapons from two to four years, when the facts regarding the points a) and c) of the point 1 have been committed using arms, in activities related or not with the hunting.”
Let us analyze the said by the article 334. Setting aside the punishments, the first important that we realize is that, it is a common crime, since anyone can be the active subject, regardless of, for example, his profession.
Another important aspect is that, the behavior described by the type has to be carried out “contravening the laws or other dispositions of general character”. An objective element of the type which indicates that, we are before a blanket penal norm, legislative technique criticized by some for fulfilling neither the principle of legality nor of organic law reserve. Nevertheless, we repeat, the Spanish Constitutional Court has backed its use by the legislator, whenever: a) that the normative reference has to be express and justified on the base of the legal good protected by the penal norm; b) that the law, besides pointing out the punishment, contains the essential nucleus of the prohibition; and c) it is satisfied the requirement of certainty or, what in constitutional expression already normalized is the same: that “the behavior classified as criminal is enough detailed with the indispensable complement of the norm to which the law is referred, and in this way, it is safeguarded the function of guarantee of type with the possibility of knowledge of the actuation penally ordered”.
The precept also says that, the typical behavior in order to be considered a penal illicit, has to be an administrative infringement too. In the ambit of the protected species of wild flora and fauna, we have to attend to the regional normative, and in more general terms to the Law 42/2007, of 13 December, of the Natural Patrimony and Biodiversity, which in its article 80 classifies the infringements. Here, the principle of minimal intervention of the penal law will be of importance, although it is mostly aimed to the legislator, hence, if the behavior suits the objective and subjective elements of the type, it is going to be penally punishable. Does it mean that a behavior can be punished two times, one in the administrative order and other in the penal order? No, this would infringe the principle non bis in idem, pay attention to this excerpt from the Spanish Constitutional Court´s sentence of 30 January 1981: “4. The general principle of law known as “non bis in idem” supposes, in one of its more known manifestations the not duplicity of sanctions –administrative and penal- in the cases in which is appreciated the identity of subject, fact and foundation without existence of a relation of special supremacy of the Administration -relation of public servant, public service, concessionaire, etc.- which may justify the exercise of the “ius puniendi” by the courts and at the same time the power to impose penalties of the Administration.”
We continue and the next thing that we find are the behavior punished by the type, which the type divides in:
a) hunts, fishes, acquires, possesses or destroys protected species of wild fauna;
b) traffics with them, their parts or derivates of them, o;
c) carries out activities which impede or hinder its reproduction or migration.”
Upon reading them, concretely the first, it is when we realize that the type is dedicated only to the protected species of wild fauna, being out of its scope the flora.
As we already said regarding the article 332 CP, besides the regional legislation that may exist, two are especially important: 1) The Law 42/2007, of 13 December, of Natural Patrimony and the Biodiversity, which in its article 56 creates the List of Wild Species in Regimen of Special Protection, which includes species, subspecies and populations deserving a particular attention and protection, as well as those which appear as protected in the European Directives and international covenants ratified by Spain, and; 2) the Royal Decree 139/2011, of 4 February, which develops the List of Wild Species in Regimen of Special Protection and the Spanish Catalog of Threatened Species, specifying the species, subspecies and populations integrating it.
Therefore, if this is neither in the regional regulation, nor in the Royal Decree 139/2011, of 4 February, the species of wild fauna is not protected by the article 334, although the behavior can still be punished according the administrative order, or by the article 335 like we are going to see later.
Among them, I think that there are two which pose a problem due to their interpretation, I am referring to acquiring and possessing, for the simple fact that it is not specified whether it is referring to alive animals alone or the dead are included. It goes without saying that, a dead animal cannot be hunted, fished or destroyed, thus, here this polemic does not have sense. The following excerpt from the Provincial Court of Barcelona´s resolution number 12020/2020 helps us to solve this question: “We cannot share the criterion of the Public Prosecution, established in an interpretative enquiry from the Public Prosecution of the Chamber and alleged in this appellation, which insists in extending the punishment to what is not classified, like the possession of dead animals and their parts or by-products. The possession would be illicit if the animal was alive (and in such case to kill it would not excuse the crime, like the Public Prosecution suggests for the case of not been followed its interpretative criterion), thereby the previous possession of the alive animal should be proven.
And what here happens is that, beyond this possession of dead specimens (dissected) and their parts, there has not been circumstantially proven the possession of the animal nor the traffic of the protected species or their parts. In this second point, which is the one that appears in the resolution, we especially miss the evidences from which was inferred such kind of commercial actuation. Neither the investigation nor the Public Prosecution touched in any manner this subject.
If to have is not to traffic, nor it is to acquire (behavior which sensu contrario we cannot not prosecuted if they are not alive animals and under the article 334 a) CP) we conclude that the commission of the crime has not been proved.”
Then, we can conclude that, to acquire or possess dead animals of protected species of wild fauna, is not prosecutable, at least, according to the article 334 and the previous resolution.
Nevertheless, this rule changes, for the cases in which the existence of traffic has been proven, for in these cases, the dead animals are included in the scope of the type, a criterion which we can draw from both the Provincial Court of Barcelona´s resolution number 12020/2022, and the law, which punishes not only the traffic with these species, but also with their parts or by-products.
Yet in relation with these behaviors, we should add that, this is a crime of mere activity consummating itself as soon as the typical behavior is carried out. This is drawn from the absence of a result required by the type.
A criterion which we should change, with the behavior which is punished independently, in the second paragraph of this first point of the article 334. For it punishes whoever “destroys or gravelly alters their habitat.” In my opinion, the description of the action, to destroy or alter, implies a result, the destruction or alteration. Therefore, the type should not be consummated, until any of these results is not fully proven.
Regarding the subjective elements of the type, both cases are malicious crimes, the active subject should know that he is carrying out a behavior with a protected species of wild fauna, which contravenes the established in the laws or other dispositions of general character, which, besides, is a penal illicit. Like we said before, it is not necessary to know the whole list of protected species, nor the administrative and penal law which is been infringed, being enough with having a general knowledge that what you are doing is forbidden, in order to appreciate malice. To this we should add, that there exist great chances that the judges and courts would consider as sufficient to fulfill the objective elements of the type, the eventual malice, which means that the active subjects knew the eventuality of the prohibition.
When instead of malice there has been imprudence, the behavior can also be punished, although according to the article 334. Remember that, there is grave imprudence, when the active subject omits the fulfilment of an important norm of care, regardless of whether it was imposed by a norm or socially.
Art. 334.2:
This second point, is an aggravated subtype for the behaviors established in the first. The punishments have to be imposed in their superior half, when the affected species have been classified as in danger of extinction.
In order to know the species and subspecies classified as in danger of extinction, we have to make use of the Royal Decree 139/2011, of 4 February, which develops the List of Wild Species in Regimen of Special Protection and the Spanish Catalog of Threatened Species.
Art. 334.3:
Like we said when we analyzed the subjective elements of the basic type of the first point of the article 334, the cases in which instead of malice there has been grave imprudence are also punished. But, we have to stress the necessity that this imprudence has to be grave, the norm of care omitted by the active subject should be important, as important as to be caused only by a great mistake.
Art. 334.4:
Through the last point of the article 334, it is added a new punishment to the list of punishments of the basic type of the first point. The punishment of privation of the right to possess and carry weapons must be imposed too, when the facts of the letter a) and c) of the point one, have been committed using weapons, regardless of whether they have been used in activities related to the hunting.
– Article 335:
This article was modified by the article 3 of the Organic Law 3/2023, of 28 March, which suppressed the fourth paragraph of this article, getting rid of the aggravated subtype established for the cases in which the facts have been committed in group of three or more persons, although the rest of the wording was maintained in essence.
The article 335 is aimed to species of wild fauna which are neither protected species nor species in danger of extinction. The article 335 says:
“Article 335.
1. Whoever hunts or fishes species different from the indicated in the previous article, when it is expressly forbidden by the specific norms of hunting and fishing, shall be punished with the punishment of fine from eight to twelve months, special disqualification for exercising the right to hunt or fish from two to five years and the privation of the right to possess and carry weapons for the same period.
2. Whoever hunts or fishes or carries out relevant activities of shellfishing different from the indicated in the previous article whether on public or private lands, subjected to a special hunting regimen, without the due authorization of the owner or subjected to concession or shellfishing or aquaculture authorization without the due authorizing administrative title, shall be punished with fine from four to eight months and special disqualification for exercising the right of hunting, fishing or carrying out activities of shellfishing from one to three years and privation of the right to possess and carry weapons for the same period, besides the punishments which may correspond to him, in their case, for the commission of the crime established in the point 1 of this article.
3. If the previous behaviors produce grave damages to the hunting patrimony of a land subjected to a special hunting regimen or to the sustainability of the resources in areas of concession or shellfishing or aquaculture authorization, shall be imposed the punishment of imprisonment from six months to two years and special disqualification for exercising the rights of hunting, fishing and carrying out activities of shellfishing from two to five years and privation of the right to possess and carry weapons for the same period.”
Art. 335.1:
Let us start with the first point. The first that we realize is that, it is a common crime, in the sense that it can be committed by anyone, since the precept starts with “Whoever…”, without later adding any special qualities to the active subject.
Subsequently, we find the typical behavior and the object of the crime, being punished whoever “…hunts or fishes species different from the indicated in the previous article…”. Thus, the action is limited to hunt or fish, and the object of the crime, to the species which are neither the object of special protection nor in danger of extinction.
It is a crime of mere activity, since punished is the activity, not the obtention of the hunted animal.
Besides, the hunting and fishing of these species has to be expressly forbidden in the specific norms about their hunting or fishing. Therefore, this is another blanket penal norm. In order to find out when it is expressly forbidden their hunting or fishing, we should make use of the corresponding regional legislation and to the said by the Law 42/2007, of 13 December, of the Natural Patrimony and the Biodiversity. For example, the latter forbids in its article 65.3.b) “the hunting of birds during their mating, and breading season and the hunting during their journey toward the places of breeding in the case of migratory species.”
And the Law 4/2021, of 1 July, of Hunting and Sustainable Management of the Hunting Resources of Castilla y Leon, in its article 50, forbids “To hunt the so-called fortune days, understood as those which, as consequence of fires, floods and other causes, the animals are deprived of the normal faculties of defense and obliged to concentrate themselves in determined places.”
Regarding the subjective elements, it is clearly a malicious crime, for which the legislator has not foreseen its commission by imprudence. Hence, the active subject must know that with his acts is infringing a penal norm. We should not dismiss it commission by eventual malice either, being enough with knowing that probably a norm is being infringed.
Art. 335.2:
In this second point, like before, the first thing that we realize is that, it is a common crime. It means that, it can be committed by anyone, as far as he fulfills the subjective and objective elements of the type.
The following thing that we know, is the typical behavior and the object of the crime, it is punished to hunt, fish or carry out relevant shellfishing activities, of species different from the indicated in the previous article. In this way, they have to be species of wild fauna which are neither specially protected nor in danger of extinction.
It is a crime of mere activity, therefore, it is not punished the obtention of the animal, but rather to carry out the punished activity.
We continue, and we know the place where has to be developed the typical action of the object of the crime. It has to take place “…on public or private lands, subjected to a special hunting regimen…” We more or less know what is a public or private land. A public land, is a land which belongs to the State or another public administration, like an autonomous community, a province or a town. And private land, is the land that belongs to a private natural or legal person.
What is not as clear, is when it is subjected to special hunting regime. Like in the previous articles, this indicates that it is a blanket penal norm, which, therefore, must be completed with others in order to determine its scope. In order to solve this matter, we have to make use of the Law 1/1970, of 4 April, of hunting, which in its article 8 distinguishes between two kind of lands, those of common hunting exploitation and those of hunting exploitation subjected to a special regimen. The hunting lands subjected to a special regimen are, “the National Parks, the Hunting Lodges, the National Hunting Reserves, the Zones of Security, the Hunting Grounds, the Fences and those ascribed to the Regimen of Controlled Hunting.” These are the lands to which is referred the article 335.
But the behavior is not clearly defined yet, for we all know that it is precisely in this places that it is possible to hunt wild fauna without a special protection or in danger of extinction. We missed the detail, that the hunting or fishing has to be carried out without the authorization. Here, the jurisprudence of the Spanish Courts has been very important, since they have understood that not every hunting or fishing without authorization has to be a penal illicit, it would contravene the principles of proportionality and ultima ratio of the penal order. There is going to be a penal illicit when besides the lack or authorization, the hunting or fishing is carried out during the closed season. Here we have a good example, in the Provincial Court of Palencia´s sentence number 69/2024: “In second place, in spite of not being alleged by any of the appellants, we have to bring here the jurisprudence from the Spanish Supreme Court which interprets this second point of the article 335 of the Spanish Penal Code and which describes and qualifies its scope and content. Concretely, in the Sentence number 570/2020 of the Criminal Chamber of the Supreme Court, deponent D. Manuel Marchena Gómez, it says in its Second Legal Basis: “3.5- Despite the literal sense of the article 335 CP, the Chamber understands that not all lack of fulfillment of an administrative prohibition of hunting may be classified as crime. This precept cannot be degraded to the condition of purely formal crime of disobeying the administrative regulation. It is forbidden by the principle of minimal intervention, this is, the necessity of reserving the penal answer to those behaviors more socially harmful. But the clarity of this idea, which defines an unsurmountable departing point, does not impede to recognize that in the different possibilities of prohibitions coexist, among formal lacks of fulfillment, insufficient by themselves to comply the material unlawfulness, other infringements which go beyond a simple formal violation. Among them we have to include the hunting of species not protected during the closed season.”
Leaving behind the objective elements of the type, like with the first point, it is a malicious crime, which could not be committed by imprudence (art. 12 CP). There is malice when the active subject knew that he needed the mandatory authorization for hunting or fishing on a land subjected to a special hunting regime, and despite this knowledge, he hunted or fished without it. We cannot forget the eventual malice, being enough with knowing the possibility of being committing a penal illicit.
Regarding the legal good, it is the biodiversity, like a diffuse interest, which belongs to the collectivity and not a person. This excerpt from the Provincial Court of Ciudad Real´s sentence number 336/2023, is interesting: “5. The legal good protected lies, not exclusively in the protection of the private hunting reserve (with this would be privatized the cause of the penal punishment) but the protection stems from the public control to the activity of hunting, not the exclusive right to the private reserve, what would lead us to a privatizing consideration of the protection to the crime in question. The aim is to control the exercise the regulated hunting in determined closed spaces, but in a notion aimed at protecting the balance of the natural spaces and the exclusion of activities of hunting in clear attacks to the biodiversity. It is punished, thus, the unlawful irruption on hunting lands with a title of property identified; in other words, the uncontrolled hunting in protected spaces, guaranteeing the balance of the hunting, more than the own exclusivity of the owner of the private hunting reserve. Thus, the legal good protected is broader and cannot be reduced to a privatization of the exclusive private hunting reserve. The scope of the protection is more collective than private. What is protected is the balance of the natural spaces, even with the element of the consideration of private hunting reserve, being the ownership identified of the land, or private hunting reserve an element of the type.”
Lastly, there is something else which draws our attention in this second point, for the legislator expressly establishes the relation which may exist between the crimes of the first and second point of the article 335. There is a real concurrence of crimes of the article 73 CP, this is what we understand from the end of this second point, “besides the punishments which may correspond to him, in their case, for the commission of the crime established in the point 1 of this article.”
Art. 335.3:
The article 335 ends with an aggravated subtype of the behaviors established in its second point, imposing more severe punishments when the behaviors produce “…grave damages to the hunting patrimony of a land subjected to a special hunting regimen or to the sustainability of the resources in areas of concession or shellfishing or aquaculture authorization,…”.
The aggravated subtype, unlike the basic type of the second point, is a crime of result, since it requires grave damages, without which it cannot be applied.
– Article 336:
The article 336 punishes the employment of means for hunting especially destructive for the fauna. The article 336 says:
“Article 336.
Whoever, without being legally authorized, employs for the hunting or fishing poison, explosive means or other tools or techniques of similar destructive efficacy or not selective for the fauna, shall be punished with the punishment of imprisonment from four months to two years or fine from eight to twenty-four months and, in any case, the special disqualification for profession or trade and special disqualification for exercising the right to hung or fish from one to three years, with the privation of the right to the possession and carry weapons for the same period.
If the damage caused is of notorious importance, shall be imposed the punishment of imprisonment in its superior half.”
Let us now identify the said by this last article of the Chapter IV. Like the rest of the crimes of this Chapter, it is a common crime, therefore, it can be committed by anyone, the article 336 starts with “Whoever…”, without later requiring more qualities to the active subject.
We continue, and we find something that tells us that, this is a blanket penal norm. The precept says “…without being legally authorized…”. Therefore, we have to take into account that, there is going to be some cases, in which it is going to be legally authorized the behavior punished. We are not going to repeat the said by the preceding articles regarding the doctrine of the Spanish Constitutional Court with respect to the blanket penal norms, it is enough to say that it authorizes this legislative technique whenever determined requisites are met.
Subsequently, we find the typical behavior, to employ “for the hunting or fishing poison, explosive means or other tools or techniques of similar destructive efficacy or not selective for the fauna”. Therefore, it is a crime of mere activity, which is consummated, as soon as any of the behaviors described by the type is carried out. The problem arises, by how the legislator, after mentioning a couple of examples, adds that it is going to be punished any other method of similar destructive efficacy or not selective for the fauna, because here the judges and courts will have to study each case. In this sense it is relevant the Spanish Supreme Court´s sentence number 562/2020 of 30 October 2020 which studies the question of whether “a method not selective of hunting or fishing is enough for generating a risk of destruction of the animal richness and, thereby, resulting always comparable to the risk which introduces the hunting with explosives and with poison.” This sentence says: “(…) It is evident that when we talk about the utilization of methods of hunting or fishing not selective, neither it can be excluded that they are going to be used on species different from those which are the object of pursuit by the active subject (for example: adhesives, snares, nooses, traps, nets, smoke, etc.) nor in many occasions it may be excluded that their use affect a great number of specimens, like with the nets or the smoke. In any case, in order to conclude that there is an important risk for the fauna equivalent to the harmful lack of control which, in an abstract manner, it is attributed to the poison or the explosives, it is necessary to identify in the acts a marked risk for being able to damage, in a comparable way, to the biodiversity into which it is introduced.
This plus of suitability generating a risk of damaging the fauna is identified as the intrinsic capacity of generating a context of hunting or fishing presided by the absence of control upon the object may be result affected or the extension of its effects. The assessment of the suitability must be done in abstract, but knowing that the Penal Code refers to the harmfulness, not of a concrete tool, but also of the hunting art which is deployed, this is, that the plus of suitability has to gather the whole of mechanisms which in each case are provided and their combination in the sequence of actuations of hunting or fishing which are utilized to obtain the captures. If the hunting or fishing of the wild species, contravening laws or dispositions of general character (art. 335 of the Penal Code), gives rise to a punishment of less punitive reach than the here contemplated, and if it is likewise grave the punishment which is contemplated for the forbidden hunting or fishing of protected specimens (art. 334 of the Penal Code), it is not acceptable that the put into risk of a negligible number of specimens for the thriving and subsistence of any species, integrates the responsibility of the article 336 of the Penal Code. Being the penal type which we contemplate a crime of risk, only the introduction of a relevant risk for the fauna, justifies the punishment which may surpass the contemplated for the effective death and capture of some specimens. A plus in the risk of harming the legal good, which have to be assessed according to the destructive capacity of the biodiversity and the environment in each case. (…) The risk for the biodiversity has to be assessed from two points of view, which here are not affected:
a) For the risk of damaging a relevant number of specimens, what is not identified concurring in consideration to the number of those to which is authorized its hunting.
b) For the risk of affecting other species.”
And the Spanish Supreme Court´s sentence number 420/22 of 28 April 2022 points out that: “In order to assess the potential of affecting the biodiversity by a not selective means of hunting, two parameters are set: a) the risk that this way of hunting damages a relevant number of specimens of the species, and; b) the risk of affecting other species. As well as other subordinate or complementary: a) the characteristic of the mechanism of capture deployed. In special, whether it is aimed to maintain alive the animal or not; b) the possibilities of proceeding to the immediate release (alive) of the captured specimens of other species; c) the easy withdrawal or portability of the techniques or methods of hunting employed which allows the neutralizing of risks of continuing generating effects of indiscriminate capture beyond the moment the hunters leave the place.”
Regarding the subjective elements of the type, this is a malicious crime, which cannot be committed by imprudence (art. 12 CP). This implies that, the active subject has to know the devastating harmful capacity for the fauna of the means employed, and with this, the knowledge that he is infringing a penal norm. He does not need to know all the details of the penal norm. Indeed, the eventual malice, to know that there exist the possibility of being infringing a penal norm, could be enough to fulfill this subjective element of the type.
Lastly, regarding the legal good, this is the biodiversity, in other words, the preservation of the variety of organisms existing in the environment, in close relation with the general protection of the environment in so far as this needs an adequate ecological balance and guarantees at the same time the correct development of the biodiversity (Spanish Supreme Court´s sentence number 562/2020).
Common Dispositions:
– Article 338:
Through the article 338, it is punished in an especially severe way the behaviors which damage protected natural spaces. The article 338 says:
“Article 338.
When the behaviors defined in this Title affect to some protected natural space, shall be imposed the punishments superior in degree to those respectively established.”
The art. 28 of the Law 42/2007, of 13 December, on Natural Heritage and Biodiversity, defines what is a protected natural space:
“Article 28. Definition of protected natural spaces.
1. Shall be considered protected natural spaces the spaces of the national territory, included the continental waters, and the marine environment, along the exclusive economic zone and the continental platform, which fulfil at least one of the following requisites and are declared as such:
a) To contain representative systems or natural elements, singular, fragile, threatened or of special ecological, scientific, landscape, geological or educative interest.
b) To be specially dedicated to the protection and maintenance of the biological diversity, of the geodiversity and the natural and cultural resources associated.”
– Article 339:
The article 339 says:
“Article 339.
The judges and courts shall order the adoption, at the expense of the author of the facts, of the necessary measures aimed to restore the ecological equilibrium perturbed, as well as any other necessary preventive measure to the protection of the goods protected by this Title.”
In the article 339 is established another element of the civil liability derived from the crime, for the article 109 CP requires to repair the damages derived from it. This is, what has been called the “restitutio in integrum”.
With regard to the preventive measures of the same precept, 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.
– Article 340:
The article 340 says:
“Article 340.
If the culprit of any of the facts punished in this Title willingly repair the damage caused, the Judges and Courts shall impose him the punishment inferior in degree of the respectively established.”
The CP rewards those who before the sentence ending the penal procedure, have repaired the damage caused.
Víctor López Camacho.
Twitter: @victorsuperlope.
More in my website: www.victorlopezcamacho.com