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La protección penal de la fauna. Especial consideración del delito de maltrato de animales. Capítulo I. El delito de maltrato a los animales domésticos

2010.07.11

AUTHOR: Prof. Dr. Carmen Requejo Conde. Universidad de Sevilla
TITLE: Capítulo I. EL DELITO DE MALTRATO A LOS ANIMALES DOMÉSTICOS
PUBLICATION DATE: 2010
PUBLICATION PLACE: Editorial Comares. Sevilla

Reproduced with express authorization of the author: dA web Center, July 2010

ABSTRACT

Criminal Law has paid attention to animals for a long time. The protection of animals has evolved from an anthropocentric point of view, which saw animals as objects at the service of man to slowly acquire a sort of animal personhood deserving legal statute as beings who can hold rights protected by international regulations. Nowadays, penal codes protect animals because of their hereditary, cynegetic and environmental value; in addition, they protect the animal against mistreatment, and abandonment, punishing these actions with fines and prison.

Bill LO 15/2003, November 25th that reformed the penal code, introduced some important modifications in the crimes related to flora, fauna, and domestic animals. For instance, a subsection about domestic animals was added to the heading of Chapter IV of Title XVI of Book II, entitled “delitos relativos a la flora, fauna y animales domésticos” (“crimes related to flora, fauna and domestic animals”). Prison punishment minimums were reduced for crimes related to the flora and fauna in articles 332, 333, 334 y 336. In articles 334, 335 y 336 disentitlement of hunting and fishing rights as an applicable penalty, was specified. The action type in Article 335 was detailed through four sections. In addition, the crime of mistreatment and the misdemeanor of domestic animal abandonment were regulated, with a structure and location which has neither found doctrinal endorsement nor fulfilled the expectations of the legislating body.

Later penal code reform projects, such as law 121/000119 of January 15th, 2007 or the bill draft of November 14th, 2008 hardly affected regulation of crimes related to flora and fauna, except to adapt them to European regulations for crimes against natural resources and the environment, though they did foresee modifications of the crimes of mistreatment of domestic animals and others for town-planning and ecological crimes. They were finally not accepted. Neither did the “Proyecto de Ley” 121/000052 of November 27, 2009 prosper in a meaningful way, except for a small modification of art. 334.1 to adapt it to art. 332 related to floral species. However, the “Ley Orgánica” 5/2010 of June 22, through which the “Ley Orgánica” 10/1995 of November 23 of the Penal Code was modified, has ended up redefining the crime of mistreatment of domestic animals from art. 337 perfecting it in a technical way “eliminating the need for brutality, which made the application of the precept notably difficult”, being specific about the material object as “domestic or tamed animal” and broadening the result produced to a serious heath damage, not necessarily physical, as well as the forms of action, “through any mean or procedure”. Articles 333, in which the penalty of special disqualification was introduced and 336, which foresees the penalty of professional disqualification, were also modified. This reform will come into effect by the beginning of 2011.

In the following pages of this chapter penal types are analyzed which attempt to protect animals, not only as parts of biodiversity and in attention to their cynegetic and environmental value, but as deserving guardianship and protection as a proper legal right, though it is not always easy to define what is expressed in extensive administrative, communitary as well as penal regulations. Special attention has been shown to the jurisprudence that in the last few years has been shaping the scope of application of these norms hinting up to now a mainly symbolic character , as can be observed in the analysis here made of these norms, those which typify the crime of mistreatment of domestic animals, the misdemeanor of cruel mistreatment, the misdemeanor of abandonment and the misdemeanor of setting free potentially dangerous animals.


KEYWORDS

Animal rights. Historical evolution. Legal regulations: civil law. Administrative law. Comparative law. Penal protection. Crime of mistreatment. Legal rights. Material Object. Action and results. Subjective type. Penal code, art. 337. Misdemeanors: Mistreatment. Abandonment.


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