Flora and fauna offences (arts. 332-336 CP): illegal hunting, fishing and prohibited methods in Spain

A report by the Seprona environmental police, a statement by forest rangers or a complaint from the keeper of a private shoot turns a day in the countryside into criminal proceedings. The usual reaction —"this will end in a fine"— fails precisely in the cases that matter: the Spanish Criminal Code devotes a whole chapter to wild flora and fauna, and what decides whether the matter stays with the administration or reaches the criminal court is not the number of animals but which species it was, where it was and what methods were used.

You have been reported for a catch or a shoot: what the Criminal Code punishes

Offences against wild flora and fauna sit in arts. 332 to 336 CP, alongside three common rules that apply across Title XVI: the aggravation for protected natural areas (art. 338 CP), the restoration of the ecological balance (art. 339 CP) and the reduction for voluntary repair (art. 340 CP).

All these offences punish acting "in breach of statutes or other general provisions": the Criminal Code does not say which species is protected or when hunting is allowed. That comes from national natural heritage and biodiversity legislation, from the hunting or fishing act of the autonomous region and from the catalogues of threatened species. Without that non-criminal rule identified and in force on the day of the events, the offence has no content.

Classification therefore turns on four questions, in this order: which species it was, what methods were used, where it happened and with what degree of fault. Change the answer to any one of them and the applicable article —and the sentencing range— changes with it.

Art. 332 CP: protected wild flora and its habitat

Art. 332.1 CP punishes anyone who cuts, fells, uproots, gathers, acquires, holds or destroys protected species of wild flora, or traffics in them, in their parts, derivatives or propagules. The penalty is six months to two years in prison or a fine of eight to twenty-four months, plus special disqualification from a profession or trade for six months to two years. The same penalty applies to anyone who destroys or seriously alters their habitat.

The paragraph itself contains a way out that is rarely used: conduct affecting "an insignificant number of specimens with no relevant consequences for the conservation status of the species" falls outside the offence. That is not a rhetorical formula: it is an element of the offence and it is established with a technical report on population status, not with the impression recorded in the police statement.

Art. 332.2 CP imposes the penalty in its upper half where the species or subspecies is listed as being in danger of extinction. Art. 332.3 CP covers gross negligence: three months to one year in prison or a fine of four to eight months, with disqualification for three months to two years.

Art. 334 CP: protected wild fauna

This is the article behind most cases. Art. 334.1 CP punishes three groups of conduct in relation to protected species of wild fauna: a) hunting, fishing, acquiring, holding or destroying; b) trafficking in them, in their parts or in their derivatives; and c) carrying out activities that prevent or hinder their reproduction or migration. The same penalty applies to destroying or seriously altering their habitat.

The penalty is six months to two years in prison or a fine of eight to twenty-four months and, in any event, special disqualification from a profession or trade together with special disqualification from exercising the right to hunt or fish for two to four years. That "in any event" is the consequence that weighs most in practice: even if the court opts for the fine, the licence is unusable for years.

As with flora, art. 334.2 CP raises the penalty to its upper half where the species or subspecies is listed as being in danger of extinction, and art. 334.3 CP covers the negligent form. Art. 334.4 CP adds deprivation of the right to own and carry weapons for two to four years where the conduct under a) and c) is carried out using weapons, "whether or not in activities related to hunting".

Art. 335 CP: unprotected species, bans and third-party shoots

Art. 335 CP deals with species other than those covered by the previous article, and has three very different tiers.

• 335.1 CP: hunting or fishing those species where that is expressly prohibited by the specific rules on their hunting or fishing. Penalty of a fine of eight to twelve months, special disqualification from the right to hunt or fish for two to five years and deprivation of the right to own and carry weapons for the same period. No prison.
• 335.2 CP: hunting, fishing or carrying out significant shellfishing on public or private land belonging to others and subject to a special game regime without the holder’s permission, or in areas under a shellfish or aquaculture concession or authorisation without the corresponding administrative title. A fine of four to eight months, disqualification for one to three years and deprivation of weapons for the same period, in addition to the penalty under the previous paragraph where the species was also prohibited.
• 335.3 CP: where that conduct causes serious damage to the game stock of land subject to a special game regime, or to the sustainability of resources in shellfish or aquaculture concession areas, the penalty becomes six months to two years in prison, with disqualification for two to five years and deprivation of weapons for the same period.

The step from 335.2 to 335.3 is where poaching on a private shoot stops being a fine and moves into prison territory, and it depends on an assessment of the damage that is almost always open to challenge.

Art. 336 CP: poison, explosives and non-selective methods

Art. 336 CP punishes anyone who, without legal authorisation, uses poison, explosives or other instruments or methods of similar destructive or non-selective efficacy for hunting or fishing. The penalty is four months to two years in prison or a fine of eight to twenty-four months and, in any event, special disqualification from a profession or trade together with special disqualification from the right to hunt or fish for one to three years, with deprivation of the right to own and carry weapons for the same period. Where the damage caused is of notable importance, the prison term is imposed in its upper half.

Two points decide entire cases. First, what is punished is using the method, not catching anything with it: no animal need appear. Second, destructive or non-selective efficacy is a technical question about the specific device and how it was set, not a label attached to its name. The clause "without legal authorisation" also leaves out conduct covered by an administrative species-control permit.

Art. 333 CP: introducing or releasing non-native species

Art. 333 CP punishes anyone who introduces or releases non-native species of flora or fauna in a way that harms the biological balance, in breach of the protective provisions. The penalty is four months to two years in prison or a fine of eight to twenty-four months and, in any event, special disqualification from a profession or trade for one to three years.

It appears in fish releases into reservoirs and watercourses, in unauthorised restocking and in the release of exotic pets. The offence requires harm to the biological balance: a release that does not produce it stays with the administration, and that is exactly the boundary to be worked on with expert evidence.

Protected areas, restoration and repair: arts. 338, 339 and 340 CP

The three common rules weigh more than many refinements of the offence itself:

• Art. 338 CP: where the conduct affects a protected natural area, penalties are imposed one degree higher. It is the aggravation with the widest reach in the whole chapter.
• Art. 339 CP: courts shall order, at the offender’s expense, the measures needed to restore the disturbed ecological balance, plus any necessary interim measures. It is not damages: it is an obligation to act.
• Art. 340 CP: where the offender has voluntarily repaired the damage caused, the penalty is imposed one degree lower. That is a full degree, and it depends on decisions taken before trial rather than on closing submissions.

As to time limits, none of these offences exceeds five years of prison or disqualification, so they become time-barred after five years (art. 131.1 CP); where the penalty is composite, the limitation period is the longer one (art. 131.2 CP).

What this chapter does not cover: animal cruelty

Cruelty to domestic, tamed or domesticated animals, or animals living temporarily or permanently under human control, no longer shares a chapter with wild fauna: it has its own title, Title XVI bis, starting at art. 340 bis CP. The logic is different —it protects the individual animal rather than the conservation status of a species— and so are the penalties. We deal with it in the article on when animal cruelty is a criminal offence and on the animal abuse page.

What the defence looks at

• The species and its listing on the day of the events. Catalogues change: what matters is the category in force when the conduct took place, not today’s.
• Identification of the specimen. An identification made by eye in the field can be challenged with expert evidence, photographs from the file and remains; whether art. 334 CP or art. 335 CP applies depends on it.
• The administrative title. Licence and firearms permit, permission from the holder of the shoot, open season, species-control authorisation: these are elements of the offence, not mitigating factors.
• The method used. Whether it meets the destructive or non-selective efficacy required by art. 336 CP, and whether it was actually in use.
• Who did what. Who carried the weapon, who collected the animal, who organised the shoot. Being present makes nobody a principal.
• The insignificance clause in art. 332.1 CP and, for fauna, the absence of relevant consequences for the conservation status of the species.
• Repair under art. 340 CP, documented and voluntary, and the restoration measures of art. 339 CP, which are better offered than imposed.
• The boundary with the administrative file, which usually runs in parallel: the same facts are not penalised twice on the same basis.

If you have been reported for a catch, a release or the use of a prohibited method, the time to act is when the summons arrives and the field evidence can still be checked. You can contact us at +34 91 078 65 74 or look at our page on flora and fauna offences and the wider picture of environmental crimes.