La exclusión de la comisión por omisión en el delito de maltrato animal: una crítica dogmática y de política criminal a propósito de la ley Ángel

Abstract

The research presented here begins with a well-defined problem: the exclusion of commission by omission in animal abuse crimes in Colombia. The guiding thread is the normative evolution that culminates in Law 2455 of 2025 (Ley Ángel). This law represents, without a doubt, a significant advance in criminal policy, as it strengthens criminal and administrative sanctions and introduces mechanisms for prevention and investigation. At the same time, however, it leaves intact a deep dogmatic gap: Article 25 of the Criminal Code does not include crimes against animals within the equivalence clause between action and omission.The work is structured on two levels: first, the historical reconstruction of the criminal protection of animals in Colombia—from their objectification in the 1887 Civil Code to their recognition as sentient beings in Law 1774 of 2016 and, finally, the Ley Ángel; and second, a critical dogmatic analysis, based on the theory of omission offenses and the guarantor positions (Roxin, Schünemann, Feijóo, Lascuraín, Demetrio Crespo, among others), which shows the impossibility of attributing liability for commission by omission in cases of animal abuse, even when legal duties of protection exist.The hypothesis defended is clear: this is a case of relative legislative omission, which undermines the effectiveness of criminal protection and contradicts the constitutional mandate of comprehensive protection of animals as sentient beings. And the conclusion is equally unequivocal: Colombian criminal policy has advanced in the field of animal welfare but remains incomplete on the dogmatic level. Unless Article 25 is reformed to expressly include animals within the equivalence clause, an area of impunity will persist—an area incompatible with the coherence of the criminal system and with the constitutional commitment to sentient beings.