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 where a custodial measure or protective order is breached, or a fine where the breached measure was not custodial. 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 already have a suspended sentence, a conviction for breach will trigger immediate imprisonment to serve both sentences.
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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Frequently asked questions
What is the penalty for breach of sentence?
Art. 468 CP provides for 6 months to 1 year in prison where the person breaches a custodial sentence or a precautionary measure (such as a restraining order). If the sentence breached was not custodial, the penalty may be a fine.
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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