Francisco Capacete: "Killing a cat from a feline colony can result in a fine of 100,000 euros"

PalmaA Francisco Capacete life was changed by a case in Buenos Aires in which an habeas corpus –the right reserved for humans to appear immediately before a judge after being detained– was requested to free a female orangutan held in a zoo against her will. "I found myself with great apes, who think and feel", he recalls. A law graduate from the UIB, he specialized in animal law in 2012. "I have always liked animals", he admits. Today he lives by defending them.

As a lawyer specializing in animal law, what types of cases do you most frequently handle?

— Neglect and omission of basic care are very common, especially in the countryside and in second homes, on farms in the countryside where dogs are used for guarding. In this context, many are uncared for, with mange and malnutrition. It is silent abuse: it does not make noise, but the animals suffer it for years. Then there is direct violence, more occasional. I have encountered cases of aggression against homeless people who have pets, and also aggression against the animals themselves. In the family sphere, there are cases of violence against the pet to harm the ex-partner, which would fall under vicarious violence. In the Peninsula, mistreatment of hunting dogs is also common: when they lose their vigor, they hang them. Unfortunately, there are quite a few cases of this kind. And little is said about another area: the abandonment of puppies and live litters. It is very difficult to find the responsible party and judge them if it is not registered.

Do you think the Animal Welfare Law achieves its objective of protecting animals?

— The law is a very important and significant advance because it recognizes that animals are subjects of rights. Before it was a legal debate, now there is no doubt. But the measures it establishes require budget and training for public officials, such as the Local Police, for example, in the management of feline colonies. And this is difficult to implement. Furthermore, the regulation that develops the law has not yet been approved. It is difficult to assess whether it fulfills its objective due to a defect in the law or a lack of regulatory development. If not done, it may remain a declaration of intent. The Spanish government is not doing all it could. It does not give the regulation the importance it deserves. Meanwhile, the Directorate General of Animal Rights is working on the draft, but there are matters considered more important on the parliamentary agenda. The law was approved in extremis. I believe that in the political negotiation there was no longer any rush to make the regulation. They must have thought: 'We will satisfy public opinion and see if they forget about it or not.' But the regulation should already be approved.

What a delay you have?

— One year. In the transitional provisions, the deadline for its approval was established.

What are the main legal loopholes or gaps that make it difficult to properly sanction animal abuse?

— The law establishes amounts, but it is not criminal, but administrative and civil. It now sets much higher economic sanctions for administrative offenses. Before, abandoning a dog could cost 150 euros. Now, city councils can reform ordinances and establish fines of up to 60,000 euros. Killing a cat from a feline colony can result in a fine of 100,000 euros. The law protects and curbs administrative offenses.

Article 337 of the Penal Code establishes maximum penalties of 12 to 18 months in prison for animal cruelty. Do you consider them sufficient for serious cases or sexual abuse of animals?

— They are totally insufficient, because in practice they do not imply going to prison. The case is resolved with a fine or community service. Penalties for animal cruelty offenses must be increased. Our sensibility demands it. Society demands it, but the penalties are from decades ago.

Is it a contradiction?

— It is a flaw. There is no coherence. The town councils dictate some rules; the communities, others; and the Government, others. It is more worthwhile to kill an animal than to kick it or leave it without food. It is outrageous.

Despite social awareness, what is missing?

— There is a lack of correct dissemination. Quite a lot of fake news has been spread. Even so, if we compare it with the 50s or 90s, there is much more protection. Steps are being taken forward, but changing the mentality of a whole country is very slow. We are doing well, but there is still a lot to do. It is a gradual conquest. In many countries there is no going back: more protection and more rights.

What difficulties do you observe in the courts for convicted persons to serve effective sentences?

— Currently, they are not very useful. When an association or a client asks me to file a lawsuit for animal abuse, I tell them we will lose the case, even if we are proven right. Usually, the abuser gets away with it. In Mallorca, there have been cases of very serious violence in which the Provincial Court has imposed sentences of 18 months, but has confirmed that the aggressor does not go to prison. It is frustrating. We must continue working on it so that the jurisprudential criterion and criminal law change. In Palma, the criterion is that if the sentence does not exceed two years and there are no prior convictions, entry into prison can be suspended. Furthermore, it is sometimes very difficult to prove guilt.

Do police forces, veterinarians, and judges have enough resources to investigate these cases?

— Yes, but with nuances. Seprona, of the Civil Guard, has a great limitation, because they are few for all of the Balearic Islands. It is not a lack of police officers, but rather specialized training in the Local Police. Sometimes, the appropriate decisions are not made when collecting evidence: preserving the animal's carcass in appropriate conditions for a forensic report, asking neighbors, or taking photographs.

How is sexual abuse of animals legally addressed?

— If we look at similar processes, like the advances in women's rights, at the beginning there was also frustration at losing cases. But progress was made. Idealism is needed and the conviction to go through years of hard work. Little by little, justice will be achieved. This day has not yet arrived, but it will. This is what allows me to keep going forward.

In comparison with other European countries, how do you assess Spain in terms of animal protection?

— Germany, Switzerland or the Netherlands are examples of a change in mentality and a great deal of prevention work. In these countries, animal abandonment practically does not exist. It is highly regulated. In fact, there are dogs that are sent from Spain to Germany because there is no breeding market there and they need to import them. We must take an example from the previous work: to prevent crimes, we must raise awareness. And yes, they also have harsher penalties.

If you could propose immediate legislative changes, what would you prioritize?

— There is a legal current that proposes not only to punish, but also to reward. To incentivize citizens to comply with the law, for example, with tax breaks, discounts, and fee reductions. In Spain this concept seems almost alien, but it is already applied in other European countries. Furthermore, prison sentences for animal abuse should be increased and the 2023 law should be amended to make training mandatory in town halls, for both civil servants and citizens. Now it is only recommended.