Have you noticed how cases of animal abuse have gained prominence in public debate in recent years? Videos that go viral on social media, police operations with significant media coverage, and popular mobilizations for harsher punishments reveal a profound shift in social sensitivity. Animal protection has ceased to be a peripheral issue and now occupies a relevant space on the legal and legislative agenda.

But the question remains: is the Brazilian penal system structured coherently and sufficiently to address cruelty against animals? Or are we still operating with a fragmented, reactive, and incomplete model?

The answer requires an analysis that goes beyond moral outrage. It is necessary to examine the constitutional framework, the sub-constitutional legislation, the normative gaps, and comparative experiences to understand whether Brazilian Criminal Law keeps pace with the ethical evolution of society.

The constitutional basis: the prohibition of cruelty as a normative command.

The starting point is the 1988 Federal Constitution. Article 225, §1, VII, establishes that it is the responsibility of the Public Authorities to protect wildlife, prohibiting practices that subject animals to cruelty. This is not a vague programmatic recommendation, but a normative command with its own legal weight.

The Brazilian Supreme Federal Court has already recognized this normative force in landmark decisions. In the judgment of ADI 1.856/SC (the "farra do boi" case), the Court declared the practice unconstitutional on the grounds that cultural protection cannot override the constitutional prohibition against cruelty. More recently, in ADI 4.983/CE, relating to vaquejada (a traditional Brazilian rodeo-like event), the Supreme Federal Court reaffirmed that practices that impose unnecessary suffering on animals violate the constitutional text.

These precedents make it clear that animal protection is not limited to the collective environmental dimension. Cruelty, as suffering inflicted on a sentient being, is at the core of the constitutional prohibition. This shifts the debate from a merely ecological field to a broader ethical and legal dimension.

The current model: Environmental Crimes Law and its limitations.

Despite the constitutional relevance of the topic, the 1940 Penal Code does not contain a specific structured classification for crimes of animal cruelty. The main incriminating norm is found in Article 32 of Law No. 9.605/1998 (Environmental Crimes Law), which provides for penalties for those who abuse, mistreat, injure, or mutilate animals.

Originally, the penalty was three months to one year of detention and a fine—a sanction that, in practice, frequently resulted in decriminalizing measures. The situation changed partially with Law No. 14.064/2020, which increased the penalty to two to five years of imprisonment when the victim is a dog or cat.

At first glance, it seems like a significant step forward. However, the change revealed a systemic inconsistency: other species continue to be subject to the more lenient penalty. From a constitutional point of view, the prohibition against cruelty does not distinguish between species. The differentiation based on affective proximity to humans (dogs and cats) reveals legislative selectivity that can be questioned from the perspective of normative coherence.

Furthermore, the dispersed nature of the subject matter in the Environmental Crimes Law reinforces the fragmentation of the penal system. The lack of organic inclusion in the Penal Code contributes to the perception that the protection of animal life still occupies a peripheral position.

Structural gaps: what has not yet been properly addressed.

Although Article 32 covers various behaviors, there are significant grey areas. Repeated abandonment, for example, is not always treated with the appropriate severity. Intensive commercial exploitation in degrading conditions also faces difficulties in clear criminal classification.

Another sensitive point is industrial animal production. The line between permitted economic practice and cruel treatment is legally delicate and often depends on administrative regulations, which weakens criminal intervention.

There are also problems with effectiveness. Investigating crimes against animals requires specialized technical expertise, often from veterinarians. The lack of adequate infrastructure hinders the production of robust evidence. Without consistent proof of suffering or injury, criminal liability becomes weak.

Therefore, it's not just about increasing penalties, but about strengthening the system as a whole, from the definition of the crime to criminal prosecution.

The debate over legal rights: the environment or the animal itself?

A central issue in criminal law doctrine is the definition of the protected legal interest. Traditionally, the crimes foreseen in Law No. 9.605/1998 are classified as environmental crimes, protecting ecological balance.

However, the constitutional prohibition against cruelty indicates that animal suffering is an autonomous legal value. Some contemporary legal scholars argue that the legal good is not only the environment, but also the integrity of the animal itself as a sentient being.

This discussion is not merely theoretical. The definition of the legal good influences the interpretation of norms, the sentencing process, and the very justification for penal intervention. If animal suffering is recognized as the core of the protection, the penal response must be calibrated based on this premise.

Comparative experience: what other countries have done

International comparisons reveal interesting trends. In Germany, the Tierschutzgesetz (Animal Protection Law) provides for a prison sentence of up to three years for serious animal abuse. German law expressly recognizes that animals are not things, even though they are subsidiarily subject to the legal regime of property.

In Spain, the 2023 reform of the Penal Code expanded the protection of vertebrate animals, increasing penalties and strengthening the criminalization of abandonment and abusive exploitation. Spanish legislation aligns with the recognition of animal sentience in European law.

In Portugal, Law No. 69/2014 criminalized the mistreatment of companion animals, providing for imprisonment. The Portuguese Constitutional Court addressed questions about the constitutionality of this autonomous criminal protection, ultimately consolidating its legitimacy.

These models demonstrate that the criminal protection of animals can be structured in a more systematic way, without compromising the rationality of Criminal Law.

Possible paths to reform

If the Constitution already prohibits cruelty, the next step is to improve the coherence of the penal system. Several proposals stand out:

1. The inclusion of crimes against animals directly into the Penal Code, conferring normative centrality.
2. Standardizing feather patterns across all species, avoiding selective breeding based on cultural criteria.
3. Provision for specific aggravating factors related to extreme cruelty or economic exploitation.
4. Strengthening the investigative and forensic structure.
5. Expansion of preventive and educational policies.

Criminal reform, however, should not be synonymous with irrational punitivism. Criminal law remains an instrument of last resort. The expansion of protection must respect proportionality and appropriate legislative technique.

Conclusion: Between ethical evolution and penal maturity

Brazilian society has changed. Sensitivity towards animal suffering is much more intense today than it was a few decades ago. The law, especially criminal law, needs to keep pace with this transformation, but with technical responsibility.

The current system shows significant progress, especially after 2020, but still reveals fragmentation, selectivity, and challenges to its effectiveness. The Constitution offers a solid foundation for more coherent criminal protection. Comparative experience demonstrates that there are viable avenues for improvement.

Ultimately, the question isn't whether Criminal Law should protect animals—that's already constitutionally defined. The real question is whether we are willing to structure that protection in a consistent, rational way, aligned with the ethical evolution of society.

References

BRAZIL. Constitution of the Federative Republic of Brazil of 1988.
BRAZIL. Law No. 9.605, of February 12, 1998.
BRAZIL. Law No. 14.064, of September 29, 2020.
FEDERAL SUPREME COURT. ADI 1.856/SC.
FEDERAL SUPREME COURT. ADI 4.983/CE.
PRADO, Luiz Regis. Environmental criminal law. São Paulo: Revista dos Tribunais.
SARLET, Ingo Wolfgang; FENSTERSEIFER, Tiago. Constitutional Environmental Law. São Paulo: Revista dos Tribunais.
GERMANY. Tierschutzgesetz.
SPAIN. Penal Code (recent reforms on animal protection).
PORTUGAL. Law No. 69/2014.