Restraining Orders in Spain: Duration and Defence

Restraining Order in Spain: Duration and Defence

A restraining order is one of the most serious measures that a criminal court may adopt. It prohibits the person under investigation or the convicted person from approaching certain people, places or homes. It may be imposed as a precautionary measure during the investigation stage, as a condition for suspension of sentence or as an ancillary penalty in a final judgment.

Its consequences are immediate: anyone who breaches it commits a separate criminal offence. Therefore, knowing how it is imposed, how it can be appealed and how long it may last is essential for any person affected by it.

What is a restraining order and what is its legal framework?

A restraining order — also known as a prohibition on approaching — is a measure that prevents the person under investigation, the accused or the convicted person from approaching the victim, their relatives or certain places within a minimum distance set by the judge. As a penalty, it is regulated in Article 48 of the Spanish Criminal Code. As a precautionary measure during the investigation stage, its basis is found in Articles 544 bis and 544 ter of the Spanish Criminal Procedure Act. As a condition for suspension of sentence, it operates pursuant to Article 83 of the Spanish Criminal Code.

Article 544 ter of the Spanish Criminal Procedure Act specifically regulates the protection order, which may include the prohibition on approaching as a criminal precautionary measure. This order may be adopted urgently, even before the person under investigation has given a statement before the judge. In addition, it may be imposed even if the victim has not expressly requested it, where the judge finds indications of risk. Therefore, the person under investigation may become subject to this measure without having had a real opportunity to be heard beforehand.

The prohibition on approaching may be accompanied by a prohibition on communication — telephone calls, messages, emails — and by a prohibition on residing in a specific locality. Each of these restrictions operates independently. Consequently, their exact scope depends on the precise wording of the order or judgment imposing them, and must be analysed carefully in order to determine which conduct is actually prohibited.

When and how is it imposed? Common situations in practice

Restraining orders are most frequently imposed in proceedings involving domestic violence or gender-based violence, but they are not limited to those areas. They may also be imposed in offences involving harassment, threats, injuries or any other offence in which the judge identifies a risk to the victim. In the field of violence against women, Organic Law 1/2004 provides for urgent processing, which may lead to the adoption of the measure within hours.

The most common scenario is that of a partner or former partner who files a complaint and requests protective measures. The duty court holds the hearing under Article 544 ter of the Spanish Criminal Procedure Act, hears both parties — if the person under investigation is available — and decides immediately on the precautionary measure. However, in many cases the person under investigation does not have a lawyer at that moment, which seriously limits their ability to oppose the measure.

Another frequent situation is the measure imposed in a judgment as an ancillary penalty. In these cases, the prohibition on approaching accompanies the main penalty — imprisonment, fine or community service — and has its own duration, which may extend beyond the main sentence. Therefore, the convicted person may have already served the prison sentence and still remain subject to the prohibition on approaching.

Breach of a restraining order: a separate offence

Breach of a restraining order is classified in Article 468 of the Spanish Criminal Code as the offence of breach of sentence or judicial order. This means that anyone who approaches the victim in breach of the prohibition commits a new offence, regardless of whether the victim consented to the contact.

Consequently, an agreement between the parties does not remove the force of the measure: only the judge may modify it or lift it. Ignoring this point may turn an isolated breach into an additional accusation of significant weight.

How to challenge a restraining order: procedure and arguments

A precautionary restraining order may be challenged by filing an application for reconsideration before the same court that adopted it, and subsidiarily by lodging an appeal before the Provincial Court. The time limit for filing the application for reconsideration is three days from notification of the order. Therefore, acting quickly from the moment the measure is notified is essential in order not to lose that opportunity.

The most effective arguments for challenging the precautionary measure are the lack of proportionality between the measure and the actual risk identified, the absence of sufficient indications of danger to the victim, and the serious impact on the rights of the person under investigation — such as access to the family home or the relationship with children — without sufficient evidential basis. In addition, if the measure prevents the person under investigation from living in their own home, its replacement by a less restrictive measure may be requested.

At Fechenbach Abogados, David Fechenbach Marcos, ICAM No. 122770, works on challenging criminal precautionary measures from the initial hearing, with particular attention to restraining orders adopted without prior hearing of the person under investigation. The firm operates in Madrid, Ibiza and Cádiz. Review of the measure may also be requested at any time during the proceedings if the circumstances that justified it have changed.

However, challenging the order is not the only available route. If the situation evolves favourably — end of cohabitation, agreement in civil proceedings, change of circumstances — the defence may request the modification or lifting of the precautionary measure before the investigating judge, proving that the risk that justified it has disappeared.

How long does a restraining order last?

As a precautionary measure, a restraining order lasts as long as the reasons that justified it persist and, in any event, until the oral trial takes place. However, the judge may extend it, modify it or lift it at any time.

As an ancillary penalty in a final judgment, Article 57 of the Spanish Criminal Code, in relation to Article 48 of the Spanish Criminal Code, allows the prohibition on approaching to be imposed for a period that may vary depending on the seriousness of the offence and the penalty imposed. The specific framework depends on the offence for which the person is convicted.

The absence of specialised legal assistance at the initial hearing under Article 544 ter of the Spanish Criminal Procedure Act is one of the most common and costly mistakes. At that hearing, the judge hears the person under investigation and decides on the measure. Without a lawyer arguing lack of proportionality or absence of risk, the person under investigation may become subject to a measure lasting months and directly affecting their daily life, home and relationship with their children.

In addition, a restraining order that is not challenged at the appropriate procedural moment consolidates its effect. Challenging it later requires proving a change of circumstances, which is more difficult than opposing it from the outset. Therefore, immediate intervention by the defence at the precautionary stage has strategic value that cannot be recovered later.

Contact Fechenbach Abogados

If a restraining order has been imposed against you or you are due to appear before the duty court, Fechenbach Abogados can intervene from that very first moment.

We provide assistance in Madrid, Ibiza and Cádiz. Contact us without obligation at abogados.fechenbach.es.