Gender and domestic violence
In short
A restraining order (orden de alejamiento) is one specific measure: it prohibits the person from going near the victim, her home, her workplace or any place she frequents. It can be imposed as a precautionary measure while the proceedings last (article 544 bis of the Criminal Procedure Act) or as a penalty in the judgment (article 48 of the Criminal Code, Código Penal). It usually comes with a ban on contacting the victim by any means.
A protection order (orden de protección) is broader. It is a comprehensive protection status which, in a single decision, can include criminal measures (restraining order, ban on contact, removal of weapons), civil measures (use of the family home, custody of the children, contact arrangements and child maintenance) and access to support services and financial aid for the victim.
The civil measures in a protection order last for 30 days. If family proceedings are filed within that period, the measures remain in force for 30 days from the filing, during which the judge must confirm, modify or lift them. That is why it makes sense to prepare the family law claim at the same time as the protection order.
Going near or contacting the protected person is the criminal offence of breaching a precautionary measure, even if the victim consents. Where the protected person is a partner or former partner, or one of the relatives listed in article 173.2 of the Criminal Code, the penalty is six months’ to one year’s imprisonment (article 468.2 of the Criminal Code). A breach can also lead to tougher measures, including remand in custody.
If the victim wishes to resume contact, the correct way is to ask the court to modify or lift the measure. It must never be done simply by ignoring it.
A protection order is granted within criminal proceedings, so there must be a complaint or a police report (atestado) bringing the facts to the court’s attention. It can be requested by the victim, by certain relatives specified by law or by the Public Prosecutor, and the judge can also grant it on their own initiative.
As a precautionary measure, it remains in place for as long as the proceedings last, unless the judge modifies or lifts it. If there is a conviction, the restraining order is imposed as a penalty for the length set in the judgment, depending on the offence.
Yes. The order can be challenged by an application for reconsideration (recurso de reforma) before the same court and by an appeal (recurso de apelación) before the Provincial Court of Alicante (Audiencia Provincial). The appeal should be prepared quickly, with evidence showing a change in circumstances or the absence of risk.
The obligation to comply with the measure lies with the accused: the victim’s consent does not prevent the offence of breach. The sensible thing is not to reply, to keep evidence of the contact and to tell your lawyer.
Legal basis
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