Restraining order When does it apply?

We are all used to hearing about restraining orders. It is a precautionary measure aimed at preventing the commission of a crime and is therefore extremely common in cases of gender or domestic violence, for example. Here we are going to go deeper into the matter to help you solve all your doubts about it.

Restraining order: definition

We must turn to section two of article 48 to find the definition of a restraining order in the Penal Code. This defines it as a measure that prohibits a subject from approaching a victim, as well as their relatives or other persons who may be considered necessary, at a certain distance, regardless of the place where they are. This obviously concerns their home, workplace or any other place.

Restraining orders must always be enforced after a court ruling and also involve a prohibition on communicating with the victim and the other persons specified in the order. In fact, they cover any means imaginable, whether written or oral (email, phone calls, postal letters, messaging applications, social networks, etc.).

Moreover, in the event that the victim is the victim's partner and they have children in common, the visiting, communication and living arrangements will be suspended for as long as the order is valid. The judge will be solely responsible for determining its scope in terms of distance and temporality and will adopt the necessary measures to guarantee its effective compliance. To this end, he shall have at his disposal the police and electronic means he deems appropriate.

What are the requirements for a restraining order?

Specifically, the following requirements must be met in order to apply for a restraining order:

• Complaint accusing a subject of committing an offence against his person.
• Provision of sufficient evidence.
• However, according to Article 57 of the Criminal Code, not all crimes are susceptible to allow the application of restraining orders. Specifically, they must refer to these:
• Injury.
• Abortion.
• Homicide.
• Threats, harassment and crimes against freedom in general.
• Trafficking in human beings.
• Torture.
• Crimes against moral integrity.
• Crimes against sexual freedom.
• Offences against honour.
• Offences against property.
• Theft, robbery, swindling and other offences against the socio-economic order.
• Offences against privacy
• Offences against the inviolability of the home.
• The procedure for requesting restraining orders.

Now that you know which offences are covered by the Criminal Code for the granting of a restraining order, it is time to find out how to obtain one.

Specifically, whether it is a restraining order for harassment or for any other offence, only the judge can determine it by means of a sentence at either of these two moments in the judicial process:

During the process: in this case, it is established as a precautionary measure with the aim of protecting the victim of criminal proceedings if he or she senses that there may be an effective risk. It usually lasts until the final judgment is handed down.
At the conclusion of the proceedings: the order appears next to the conviction. It can last between 1 month and 10 years, depending on the seriousness of the offence committed.

You should bear in mind that a restraining order is, according to article 39 of the Criminal Code, a disqualification penalty and can therefore only be imposed by a judge. Furthermore, it must be imposed at your own request or at the request of the Public Prosecutor's Office, the National Police or the Guardia Civil at the request of the victim and through a lawyer.

What happens if a restraining order is breached?

It depends on the case. The Criminal Code establishes that if the encounter between the subject and the victim occurs by chance and the former voluntarily leaves the place, the act goes unpunished, as it cannot be established that there is no intentional conduct.

However, if the subject of a stalking or other criminal restraining order deliberately breaches the order or refuses to leave at the time of the chance encounter, he or she may face the following penalties:

If the order referred to gender-based or domestic violence offences, imprisonment of between 6 and 12 months.
If the order refers to any other offence, a fine of between 12 and 24 months.
If the order is considered to have been breached because the defendant has removed or maliciously tampered with the electronic device placed on him to monitor his movements and prevent him from approaching the victim, a fine of between 6 and 12 months.

Is it possible to withdraw restraining orders before they expire?

The answer is yes. However, it is not a simple or quick matter. For example, if the police detect through an electronic device that an aggressor has approached his victim, even if he has the victim's consent, they can arrest him and accuse him of having breached the order and the judge will act accordingly regardless of that fact.

This is because, according to the Penal Code, the consent of the victim is not sufficient for the order to cease to be effective. It needs to be withdrawn by the judge himself. To better understand why, let's take an example.

Imagine that Maria filed a lawsuit against Juan, her husband, for domestic violence. The judge, as a precautionary measure during the judicial process and on the basis of the injury report, issues an order by which Juan cannot come within 100 metres of Maria or the family home. He is also forbidden to communicate with her until the sentence is final. However, Maria forgives him, they resume their relationship and Juan returns to the house to live with her. In this case, if Maria did not apply to the judge for the suspension of the order and the judge did not issue it, it would be in breach, which could lead to prison sentences for Juan.

By this we mean that it must be the victim who formally requests the withdrawal of the order by which a person cannot approach her. But, in addition, she must give the appropriate explanations and even provide the necessary evidence to show that there are no longer any reasons for it to continue to be in force. On this basis, the judge will decide whether to withdraw it or to keep it in force regardless of the victim's wishes.

In short, whether as a punitive or precautionary measure, the restraining order is a figure that allows judges to protect the victims of really serious offences included in our Criminal Code. Such is the protection afforded by this figure that even the consent of the victim is not enough for the judge to determine that it is no longer in force.