Restraining Orders in Spain: How They Work & Breach Penalties

🇪🇸 Read the original in Spanish

The restraining order is one of the most severe and, at the same time, most recurring rights-restricting measures in the Spanish criminal justice system. Originally designed to protect victims of gender violence, domestic violence, or harassment, this legal tool prohibits an investigated or convicted person from approaching or communicating with the complainant. However, numerous myths and practical doubts surround this legal figure: what exact distance must be maintained? What happens if the victim consents to the meeting? Or what are the criminal consequences of an accidental phone call? As experts at AbogadoAI, in this article we analyze in depth how the restraining order works under Spanish legislation, the procedures to request it, and the serious consequences of its breach.

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

A restraining order is a measure that limits a person's constitutional right to free movement in order to safeguard the physical, moral, and psychological integrity of another. In the Spanish legal system, this measure can take on two different natures depending on the procedural stage of the case:

1. *As a precautionary measure (medida cautelar):* It is imposed during the investigative phase of the criminal proceedings (before the trial) to immediately protect the victim while the facts are being investigated.
2. *As an ancillary penalty (pena accesoria):* It is imposed in the final convicting judgment as a punishment and long-term protective measure after the guilt of the offender has been proven.

The reference regulatory framework

This legal figure is mainly based on two essential legal texts of Spanish law:

• *The Criminal Code (Código Penal - Organic Law 10/1995): Regulates the restraining order in its Article 48, which details the prohibitions on approach and communication. Likewise, Article 57* establishes in which crimes it is mandatory or optional to impose this measure (especially in crimes of homicide, injuries, threats, coercion, or crimes against sexual freedom and indemnity).
• *The Criminal Procedure Act (Ley de Enjuiciamiento Criminal - LECrim): Regulates the procedure for its adoption. Article 544 bis details the general restraining order for any type of crime, while Article 544 ter specifically regulates the Protection Order (Orden de Protección*) in the field of gender violence, which combines criminal and civil measures simultaneously.

How does a restraining order work? Content and limits

When an investigating judge (juez de instrucción) or a criminal court issues a restraining order, it does not limit itself to prohibiting "approaching". The judicial resolution must be extremely precise and usually contains three types of prohibitions that the affected party must strictly comply with:

1. Prohibition of approach (prohibición de aproximación)

The judge sets a minimum distance that the investigated or convicted person must maintain from the victim. This distance is calculated "in a straight line" and usually ranges between 100 meters and 1000 meters, with a distance of 200 meters or 500 meters being the most common in judicial practice.

This prohibition applies with respect to:

• The person of the victim (wherever they may be).
• Their habitual residence or second homes.
• Their place of work or place of study.
• Any other place that the victim frequents on a regular basis (such as the children's school).

2. Prohibition of communication (prohibición de comunicación)

This consists of the absolute impossibility of contacting the victim by any physical, digital, or third-party means. This includes:

• Phone calls (including missed calls).
• Text messages (SMS), WhatsApp, Telegram, or similar applications.
• Interactions on social networks (comments, "likes", tags, or private messages on Instagram, Facebook, TikTok, etc.).
• Postal letters or emails.
• Messages sent through relatives, friends, or mutual acquaintances.

3. The use of telematic devices (the "restraining bracelet")

In cases of special gravity or extreme risk, the judge may order the installation of a telematic tracking device (colloquially known as a "GPS bracelet"). This system consists of a device worn by the investigated person and another carried by the victim. If the investigated person enters the exclusion radius set by the judge, the control center (the COMETA system) receives an automatic alert and immediately mobilizes the State Security Forces and Bodies (Fuerzas y Cuerpos de Seguridad del Estado).

Practical steps: How to request a restraining order step-by-step

If you find yourself in a dangerous situation or are the victim of a crime, these are the procedural steps you must follow to obtain a protection or restraining order in Spain:

Step 1: Filing the complaint (denuncia)

The procedure always begins with filing a complaint. You can present it before:

• The National Police (Policía Nacional) or the Civil Guard (Guardia Civil).
• The Duty Court (Juzgado de Guardia) of your locality.
• The Violence Against Women Court (Juzgado de Violencia sobre la Mujer), if there is a partner or ex-partner relationship.

At the very moment of drafting the complaint, you must expressly request the Protection Order (which includes the restraining order).

Step 2: Police risk assessment (VioGén System)

If it is a case of gender violence, the police will carry out a police risk assessment questionnaire (VioGén system). The result can be "Unappreciated", "Low", "Medium", "High", or "Extreme" risk. This assessment is immediately forwarded to the judge so that they can adopt the appropriate measures.

Step 3: Convening the urgent hearing

Once the request is received, the Duty Court or the Violence Against Women Court must convene an urgent hearing within a maximum period of 72 hours. This hearing must be attended in person or telematically by:

• The victim (assisted by their lawyer).
• The accused (assisted by their lawyer).
• The Public Prosecutor's Office (Ministerio Fiscal).

Important note: To avoid tense situations, the court has separate waiting rooms so that the victim and the accused do not physically coincide at any time.

Step 4: Holding the hearing and statements

During the hearing, the judge will take statements from both parties and examine the evidence provided (medical reports of injuries, text messages, recordings, witness statements, etc.). The Prosecutor and the lawyers will make their arguments requesting or opposing the measure.

Step 5: Judicial resolution (Auto)

After the hearing, the judge will issue a court order (Auto) almost immediately (usually on the same day or within a period of 24 hours). This order will resolve whether the restraining order is granted or denied, detailing the specific measures, the safety distance, and, if applicable, provisional civil measures (attribution of the use of the family home, custody of minor children, alimony/child support, etc.).

What happens if a restraining order is breached? Criminal consequences

Breaching a restraining order is a matter of extreme gravity in Spanish criminal law. It is not considered a simple administrative infraction, but an autonomous crime codified in the Criminal Code.

The crime of breach of sentence or precautionary measure (delito de quebrantamiento)

Article 468 of the Criminal Code establishes the penalties for those who breach precautionary measures or ancillary restraining penalties imposed by a judge:

• Prison sentence: Breaching a restraining order issued in the context of gender or domestic violence is punished with a prison sentence of 6 months to 1 year.
• Fine: In cases of common crimes (outside the scope of gender or domestic violence), the breach is punished with a fine of 12 to 24 months.

Additional and immediate consequences of the breach:

1. Immediate arrest: If the police detect the investigated person breaching the safety distance, they will proceed to their immediate arrest and bring them before the court.
2. Escalation of measures: If the restraining order had been issued as a precautionary measure (before the trial) and the investigated person breaches it, the judge can toughen the situation by decreeing provisional detention without bail (prisión provisional sin fianza) to guarantee the victim's safety.
3. Criminal record: A conviction for breach generates a criminal record (antecedentes penales), which will enormously complicate the resolution of the main trial.

Concrete examples of application and consequences

To better understand how the law operates in practice, let us analyze two common scenarios in Spanish courts:

Example 1: A meeting "consented to" by the victim

> The case of Carlos and Lucía: > Carlos has a precautionary restraining order of 500 meters from his ex-partner Lucía following a complaint for coercion. Three months later, Lucía decides to forgive Carlos and writes to him on WhatsApp proposing to meet for a coffee in a central café. Carlos, thinking that because they both agree there is no problem, goes to the meeting. During the encounter, a Local Police patrol performs a routine identity check in the area and finds that Carlos is less than 50 meters from Lucía while having an active order in force. > > The legal consequence: > Carlos is arrested on the spot for a crime of breaching a precautionary measure (Article 468.2 of the Criminal Code). In a speedy trial (juicio rápido), Carlos is sentenced to 6 months in prison. Lucía's consent lacks legal validity, as restraining orders are a matter of public order and only a judge can modify or cancel them. Lucía does not commit a crime, but Carlos does.

Example 2: Digital breach and the GPS bracelet

> The case of Javier and Marta: > Javier has a final conviction that prohibits him from communicating with and approaching within 300 meters of Marta for a period of 2 years. To guarantee compliance, the judge ordered the installation of a COMETA telematic bracelet. Javier, frustrated by the situation, decides not to approach physically, but sends an email to Marta from an anonymous account demanding that she withdraw the complaint and makes 3 missed calls from a hidden number. Furthermore, one day he decides to walk near Marta's gym, entering a radius of 150 meters of her location. > > The legal consequence: > The COMETA system detects the physical intrusion into the 300-meter security perimeter and alerts the police, who arrest Javier a few minutes later. Additionally, the analysis of the calls and the email (traced by the police's technological unit) proves the prohibited communication. Javier faces a new criminal trial for continuous breach, and could effectively enter prison by adding this new conviction to his prior record.

Mistakes you must avoid

If you are subject to a restraining order (as an investigated person) or if you are the person protected by it, making certain mistakes can lead to serious legal harm or lack of protection:

• Believing that the victim's consent voids the order: This is the most common and costly mistake. Even if the victim invites you to their house, sends you a reconciliation message, or asks you for urgent help, you cannot approach or communicate with them. The order remains in force until a judge issues an express ruling of dismissal (sobreseimiento) or lifts the measure.
• Responding to provocations or contact attempts: If you are the investigated person and the victim contacts you, do not respond under any circumstances. Block the number and immediately bring the facts to the attention of your lawyer so they can submit it to the court. Responding, even if only to ask them not to write to you anymore, technically constitutes a crime of breach by communication.
• Not anticipating casual encounters in public spaces: If you are walking down the street, enter a supermarket, or go to a shopping mall and see the protected person, you must leave the place immediately and in the opposite direction. If you stay or approach, arguing that "you were there first", the police will arrest you if they find that you were aware of their presence and did not move away.
• Neglecting associated civil measures: Often, the protection order includes the payment of child support of, for example, 300 € per month for the children. Failing to pay this support, claiming that the restraining order prevents you from interacting, is a serious mistake that will add a crime of non-payment of maintenance (impago de pensiones) to the proceedings.

Frequently Asked Questions (FAQ)

What happens if we run into each other by chance on the metro or in a supermarket?

In the event of a chance encounter, the person bound by the restraining order must leave the place immediately and without interacting at all. If the protected person calls the police, they will investigate whether the encounter was truly accidental and, above all, the attitude of the bound person. If they left quickly upon noticing, there will be no crime due to a lack of intent (dolo). If they remained at the scene, they will be arrested.

Can the victim be penalized if they facilitate the breach of the order?

In Spanish criminal law, a victim who consents to or seeks contact with the offender who is prohibited from approaching does not commit a crime of breach, as they are not the subject bound by the judicial resolution. However, Supreme Court jurisprudence determines that this conduct by the victim can reduce the credibility of their situation of fear or risk, which could lead the judge to lift the protective measure at the request of the investigated person's defense.

How exactly is the restraining distance calculated?

The distance is calculated "as the crow flies" or in a straight line (orthogonal projection), not by the path or pedestrian route that must be followed to get from one point to another. If the judge sets 200 meters, an imaginary circle of that radius is drawn with the center on the victim or their home. Any entry into that air/ground space is an infraction.

How long does a restraining order last?

It depends on its nature. If it is a precautionary measure, it lasts as long as the investigation of the criminal process lasts, until a sentence is handed down or the case is archived (unless the judge decides to lift it earlier). If it is an ancillary penalty in a sentence, it will last the exact time set by the judge in the ruling (for example, 3 years), which will start counting from the moment the sentence becomes final (sentencia firme) or from when the convicted person leaves prison if they were incarcerated.

Can you travel abroad if you have an active restraining order?

Having a restraining order in Spain does not, by itself, prevent traveling abroad, unless the judge has additionally ordered the withdrawal of the passport or a ban on leaving the national territory as a precautionary measure. However, if the victim also travels to the same destination and an approach occurs, Spanish legislation (and international cooperation agreements) could still apply penalties for the breach.

In summary

• Dual nature: A restraining order can be a provisional precautionary measure during the investigation or a final penalty imposed in a sentence.
• Absolute prohibition of communication: No physical, telephone, postal, or digital contact (social networks, WhatsApp) is allowed, not even indirectly through third parties.
• Consent does not excuse the crime: Mutual agreement to see each other does not void the order; if the investigated person approaches with the victim's permission, they still commit a crime of breach.
• Severe prison sentences: Breaching the order in the context of gender violence carries prison sentences of 6 months to 1 year in jail and potential entry into provisional detention.
• Technological control: The use of GPS tracking bracelets (the COMETA system) allows authorities to automatically and immediately detect any violation of the safety distance.

General legal information, not personalised legal advice. For your specific situation, ask your question for free at AbogadoAI — answers grounded in Spanish law (BOE), in English.

This is general information, not legal advice. Verify on the BOE or consult a lawyer for your specific case.