Breach of Sentence (Art. 468 CP): Legal Guide and Defence
In this article
Key Takeaways
- Article 468 CP
- Restraining order
- Intent vs negligence
- A chance encounter
Breach of sentence (Art. 468 CP) punishes disobeying a court decision such as a restraining order, precautionary measure or custodial sentence, with 6 months to 1 year in prison if the offender was deprived of liberty and, in all cases, if they breach a restraining or no-contact order protecting a victim listed in Art. 173.2 CP (gender-based or domestic violence); in other cases, a fine of 12 to 24 months. Because the offence protects the authority of the court rather than the victim's own wishes, the Supreme Court holds that it is committed even if the protected person consents to or seeks the contact — only the judge can lift the order. Effective defences generally focus on the absence of intent, such as a genuinely chance encounter, a reasonable mistake about the order's scope, or a failure to properly notify the accused of the decision.
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The offence of breach of sentence (Art. 468 CP) is one of the most common and dangerous offences in the criminal sphere, especially in contexts of gender or domestic violence. It requires no violence or physical harm; mere disobedience of a court decision is enough. As criminal lawyers experienced in the offence of breach, we explain the keys to this offence.
What Is Breach of Sentence?
This offence is committed by those who breach their sentence, security measure, imprisonment, precautionary measure, transfer or custody. The most common case is the breach of a restraining order or a ban on communication.
It is an offence against the administration of justice. The legal interest protected is the authority of court decisions. That is why the victim's consent is irrelevant: they cannot authorise what a judge has prohibited.
Forms of Breach
The range of cases is vast, but the courts are strict:
- Physical approach: entering the exclusion radius (e.g. 500 metres) set by the judge.
- Electronic communication: calls, WhatsApp messages, emails, or even interactions on social media ("likes", comments).
- Intermediaries: sending messages through third parties (children, friends) is also an offence.
The Consequences of Reoffending
Breach usually carries prison penalties (6 months to 1 year). If you have a suspended sentence, a conviction for a breach committed during the suspension period can lead the judge to revoke the suspension and order that sentence to be served (Art. 86.1.a CP).
Defence Strategies
The technical defence focuses on dismantling the subjective element of the offence (the intent):
- A chance encounter: coinciding in a public place by chance is not an offence if the person under investigation withdraws immediately.
- Mistake of law: a mistaken but well-founded belief that the order had expired or been lifted.
- Lack of notification: if the order was not personally notified to the accused, its compliance cannot be required of them.
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Official text: article 468 of the Spanish Criminal Code (BOE)
Frequently asked questions
What is the penalty for breach of sentence?
Art. 468 CP provides for 6 months to 1 year in prison if the offender was deprived of liberty (Art. 468.1) and, in all cases, if they breach a restraining or no-contact penalty or precautionary measure in proceedings where the victim is one of the persons listed in Art. 173.2 CP (Art. 468.2). In other cases, the penalty is a fine of 12 to 24 months.
Is breaching a restraining order a crime even if the victim consents?
Yes. The Supreme Court holds that the offence is committed even where it is the victim themselves who encourages or consents to the contact, because the measure is imposed by the judge to protect a public interest, not the wishes of the victim.
What happens if I do not return to prison after leave?
Failing to return after prison leave is a breach of sentence (art. 468 CP). It also usually entails regression to a stricter prison grade and the loss of prison benefits, considerably worsening the inmate's situation.
How is a breach of sentence defended?
By showing the absence of intent (genuine ignorance that the measure was in force or a mistake about its scope), impossibility or force majeure, or defects in the notification of the breached decision. Every element of the offence must be proven.
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This page is for information purposes only and does not constitute legal advice: every case requires individual assessment. How this content is produced and verified: editorial policy.