Does the crime of abandonment of animals have legal provisions in Brazil?
There are many draft laws underway to increase the penalties for ill-treatment of animals so that acts of cruelty against them can be prosecuted and punished within the framework of the common justice, given the existence of decriminalizing institutes in the JECRIM that, in the frigir of the eggs, end up exempting from fault the author of the ill-treatment to the detriment of the animals.
Environmental Crimes Law
However, regarding the actual abandonment of animals, it is correct to assert that there is no specific criminal type in the Environmental Crimes Law disciplining what, in fact, constitutes abandonment of animals.
What we have is only a resolution of the Federal Council of Veterinary Medicine, which succinctly says: “it is considered maltreatment… the abandonment of animals” (Article 5, IV, of resolution 1236/18). And a criminal type in the Penal Code that incriminates the abandonment of animals on others property (article 164, CP).
Thus, it is noteworthy that, unlike in other countries, such as in Portugal, there is a specific and detailed criminal type, indicating which behaviors constitute the crime of abandoning animals.
In Brazil, the above-mentioned resolution, which does not specify what is meant by abandonment of animals, punishes in the same way – through, therefore, the same criminal type – conduct with different degrees of reprobability.
And a criminal type with a Criminal Code, which punishes the act of abandonment due to the damages that improper insertion of animals on others property can cause to the owner of the land. That is, the protection that is conferred on the animal, in this case, occurs indirectly, since the protected legal good is, in fact, the property.
In Portugal, on the other hand, the ordinary legislator provided for two different types of penalties to punish abandonment (article 388, CPpt) and ill-treatment (article 389, CPpt) separately.
Thus, although protection in Portugal is conferred only on companion animals, differing, for example, from that in Germany, where protection extends to all vertebrate animals, it is correct to assert that the legal good protected in the offenses of mistreatment and abandonment is only the feeling of humans towards the nearest animals.
The Portuguese penal type related to the abandonment of animals has the following words:
Article 387 Abuse of pet animals
1 – Any person who, without legitimate cause, inflicts pain, suffering or any other physical ill-treatment on a companion animal shall be punished with imprisonment for up to one year or with a fine of up to 120 days.
2 – If the facts provided for in the previous number result in the death of the animal, deprivation of an important organ or limb or serious and permanent affectation of his ability to move, he shall be punished by imprisonment for up to two years or with a fine up to 240 days.
Article 388 Abandonment of pet animals. Who, having the duty to guard, watch or pet companionship, to abandon him, thereby endangering his food and the care he owes him, shall be punished with imprisonment for up to six months or with a fine up to 60 days.
Article 389 Concept of companion animal
1. For the purposes of this Title, pet animals shall mean any animal detained or intended to be held by human beings, in particular in their home, for their entertainment and companionship.
2 – The provisions of the preceding paragraph do not apply to facts related to the use of animals for agricultural, livestock or agroindustrial purposes, nor does it apply to facts related to the use of animals for purposes of commercial spectacle or other legal purposes foreseen.
Now, for the simple reading of the criminal type in question, it is clear that in addition to the intention of the Portuguese legislator to have been to protect only the animals closest to man, it is clear that the same defined clearly and precisely the characterizing behaviors of the abandonment of animals, which differs strongly from what occurs in the Brazilian scenario, where legislative insufficiency prevails.
Thus, in Portugal, the crime of abandoning animals is a crime of concrete and subsidiary danger. Thus, only the abandonment in which the animal is placed in a concrete situation of danger is punished. The abstract indication that the animal has been abandoned for the agent to incur the crime is therefore not sufficient.
In addition, the abandonment of animals, in the Portuguese legal system, is subsidiary in nature, because if the pet animal suffers any physical damage as a result of abandonment, the criminal type of abandonment will be absorbed by the crime of mistreatment so that there is no bis in idem – since it will be faced with only one conduct practiced in the same phatic-delitical context.
This is the case in cases where the owner or possessor leaves his animal stuck somewhere without providing the minimum conditions for the preservation of the animal’s welfare. Thus, if the possessor of the animal does not give minimal care to the animal and consequently the danger is transformed into harm, the perpetrator should be criminally liable for the ill-treatment (which can be characterized by the most diverse consequences resulting from exposure to Danger).
It is also noted that in Brazil there is a lack of legislation for the protection of abandoned animals, since abandonment and maltreatment are punished in the same way and through the same criminal type, and there is no criminal type specific, therefore, for the incrimination of the conduct of exposing the animal to danger due to abandonment.
Thus, although the Bill 44/2019, which seeks to criminalize the behavior of abandonment of animals on highways, is processed in the Chamber of Deputies, it can be seen that the reasons discussed in this project do not add anything to the purpose of the individual animal concerned.
Firstly, because the project criminalizes only the conduct resulting from abandonment and not abandonment itself. The idea in the project is to punish the owner or possessor of the animal not for the abandonment itself, but for the damages on the highways resulting from the act of abandoning.
Secondly, because the project clearly restricts the scope of incidence of the norm, since it asserts that it is a crime only if abandonment occurs on highways, thereby preventing the punishment of the agent who leaves his animal in a private or public place, different of the highway.
In view of the above, it is concluded that the penal protection due to the abandonment of animals is very precarious in our legal system, and there is not even a specific criminal type that determines precisely what is meant by abandonment of animals.
What we have, as already mentioned, besides the punishment of the insertion of animals in others’ property, is only the prediction of punishment of abandonment in the crime of mistreatment – which generates problems of proportionality. After all, maltreatment is more serious than abandoning, as it is also evident that killing an animal brings with it a greater social revulsion than the actual act of ill-treatment. They are different behaviors that deserve different penalties.