Restraining orders are punishments that protect victims of certain crimes and are based on imposing temporary limitations on fundamental rights on defendants.
What is a restraining order?
A restraining order is a prohibition on an investigated or convicted person that prevents him from residing in a place, approaching a person or place, to protect the victims of certain crimes. They are described in articles 39, 48 and 57 of the Spanish Penal Code.
In what cases can a restraining order be imposed?
A restraining order can be imposed whenever there is a need to protect victims of a crime provided for in article 57 of the penal code (crimes against security, life, liberty and sexual liberty).
However, if a person has already been convicted of a crime related to gender violence, the judge will have to compulsorily impose the penalty of removal of the victim.
Differentiate the restraining order as a measure and as a penalty
A restraining order can be imposed as a precautionary measure during the processing of a procedure, as a result of a complaint and its duration will be until the procedure ends, or by sentence, as an additional penalty, in which its duration and conditions will be stated. .
What is included in a restraining order
Restraining orders may include the prohibitions that we describe below:
I. The prohibition of approaching a person and his home at a certain distance and the places that that person frequents or his place of work. The distance is stated in meters and must be measured in a straight line.
II. The prohibition to communicate by any means with a person. All communication or attempted communication is included. For example, making "missed calls" or sending "WhatsApp" are acts that violate the prohibition.
III. The prohibition of living in a certain population. In this case, entry to a municipality is completely prohibited.
How is a restraining order controlled?
Restraining orders can be controlled by any electronic means, as stated in article 48 of the Penal Code.
One of the means that is most used by the administration of justice are telematic bracelets, which work by GPS positioning and automatically notify of breaches of the restraining order.
How long does a restraining order last?
The duration of the restraining orders changes taking into account if it has been imposed as a precautionary measure, in which case its duration will be until the end of the trial. Or it has been assigned as an additional penalty in which case the maximum duration is 10 years.
What happens if a restraining order is violated?
- Breakdown by the victim
Sometimes it may be the case that it is the victim herself who fails to comply with the restraining order, communicating with her aggressor or going to her house.
In this situation, both the victim and the aggressor will not have criminal consequences.
- Violation by the accused or convicted
If the restraining order is violated, but the breach is accidental, for example, because the beneficiary of the order and the investigated or convicted person meet by chance, and the latter leaves the place voluntarily, the fact will not have any consequence.
However, if the breach of the order occurs voluntarily, a crime of breach of precautionary measure or sentence would be committed, stipulated in article 468.2 of the Penal Code and punishable by imprisonment for between 6 months and one year.
We want to emphasize that whoever fails to comply with the order will also be sentenced, even if the victim agrees with the non-compliance.
Is it possible to remove a restraining order?
In theory, it is possible to rescind a restraining order, but it can only be done as a precautionary measure, never when it is part of a sentence.
At Audacia Abogados we put your rights above all else.