The impact of the new animal abuse offence on corporate compliance programs

On March 29th, 2023, Organic Law 3/2023, of March 28th, was published in the Official State Gazette (BOE), which modifies the Penal Code regarding animal mistreatment. This new regulation imposes a series of rules on pet owners and incorporates for the first time in our legal system the criminal liability of legal entities for crimes of animal abuse. The objective of the new regulation is to reinforce the criminal protection of animals and to enable a more effective criminal response to the different forms of violence against them, modifying the articles related to the protection of animals in the Penal Code.

Consequently, companies and entities whose activity is related to the treatment of animals must review and adapt their compliance programs in order to reduce the possible criminal risks in this regard. An example of this are slaughterhouses, veterinary clinics, transport companies, farms or livestock farms, which, when working with animals, must take into account the new regulation of the crime of animal abuse.

The criminal liability of the company may arise when the offense is committed on its behalf, for its direct or indirect benefit. Pursuant to Article 31 bis of the Criminal Code, such criminal liability may be triggered by actions or omissions of its representatives or its decision-making and control bodies. It can also occur when the crimes are committed by employees of the company, due to a serious breach of the duties of supervision, vigilance and control of their activity, in view of the specific circumstances of the case.

In this regard, it should be noted that crimes of animal abuse can be committed both by action and omission. Therefore, conduct such as leaving farm animals without food or water, not administering the necessary veterinary treatments or not providing adequate transport conditions could constitute a crime.

The new article 340 bis of the Penal Code punishes those who, outside of legally regulated activities and by any means or procedure, including acts of a sexual nature, cause an injury to an animal under human control that requires veterinary treatment for the restoration of its health. Prison sentences of 3 to 18 months or a fine of 6 to 12 months and special disqualification of 1 to 3 years for the exercise of a profession, trade or commerce related to animals and for the possession of animals are imposed.

Likewise, aggravating circumstances are considered to be the fact that the criminal conduct is carried out by the owner or the person entrusted with the care of the animal, the execution of the act for profit or the use of weapons, instruments, objects, means, methods or forms that may be dangerous for the life or health of the animal, among others.

On the other hand, in the event that the acts causing injury to the animal cause its death, the penalty will be imprisonment for 6 to 18 months or a fine of 18 to 24 months, in addition to the penalty of special disqualification for 2 to 4 years for the exercise of the profession, trade or commerce related to animals and for the possession of animals.

In the same sense, the new article 340 quater PC establishes the possibility that the legal entity may be liable in these cases with a fine or even, depending on the seriousness and characteristics of the case, with the penalty of dissolution of the legal entity, suspension of its activity, closure of the premises for up to 5 years or disqualification from obtaining subsidies.

The Criminal Code itself establishes theexemption of criminal liability of the legal person in the case that the management body has adopted and implemented a model of organization and management of crime prevention (compliance program), with the aim of ensuring due compliance with the rules in the company. In conclusion, if the activity of the legal person is related to the treatment of animals, its crime prevention system or compliance program mustanalyze the risk of committing crimes related to animal abuse in connection with its business activity and establish the appropriate measures to prevent it.