Breach of a Restraining Order (Art. 468 CP): Penalties and Defence

Breaching a restraining order is one of the most frequent offences associated with gender-based and domestic-violence proceedings. Its severity has increased with successive reforms and, contrary to widespread belief, the victim's consent does not exempt from criminal responsibility. As criminal lawyers specialised in breach of restraining orders, in this article we break down the applicable types, the most common mistakes that lead to conviction, and the defence lines that can really work.

Legal Framework: Two Types in Art. 468 CP

Art. 468 of the Spanish Criminal Code defines two distinct modalities:

• Art. 468.1 CP — "Ordinary" breach: applies when the protected person is not a victim of gender-based or domestic violence (e.g. order arising from non-cohabiting coercion). Penalty: fine of 12 to 24 months if the measure is in force, or imprisonment of 6 months to 1 year for breach of an already imposed sentence.
• Art. 468.2 CP — "Aggravated" breach: applies when the protected person is a victim of the offences in Art. 173.2 CP (gender-based, domestic, assistance violence). Penalty always imprisonment: 6 months to 1 year, with no fine alternative.

The Myth of the Victim's Consent

The most frequent question in consultation: "if she called me and came voluntarily, how can they convict me?". The answer is legally clear and consolidated by the Supreme Court: the victim's consent does NOT deactivate the restraining order. The reasons are:

• The restraining order is a judicial resolution addressed to the investigated/convicted person, not a right available to the victim.
• The protected legal interest is not only the victim's current will, but the principle of authority and protection against an objective risk assessed by the judge.
• Only the judicial authority that issued the measure can modify or lift it. Informal consent is irrelevant.

The accused who relies on a "peaceful resumption" without seeking the judicial lifting exposes their freedom at the first change of mind or new conflict.

Most Common Scenarios in Practice

• Resumption of cohabitation: after family reconciliation, the couple lives together again without seeking judicial lifting. Any neighbour's call to the police triggers arrest.
• "Casual" encounters in predictable places (gym, neighbourhood supermarket, children's school): force majeure is not appreciated.
• Communications via third parties or social media: the prohibition on communication includes any medium (WhatsApp, Instagram, a relative's call as intermediary).
• Breach of telematic bracelet: leaving the range, tampering with the device, or not charging it for too long activates the Cometa System alarm and triggers immediate arrest.

Defence Lines That Do Work

Consent will not exempt, but technical lines are effective:

1. Lack of valid notification. The order must have been personally served on the obligated person, with effective understanding of the content and duration. If the notification was made by edict, in another language without an interpreter, or without a signature, it can be challenged.

2. Vincible or invincible mistake about validity. If the order was close to its end, there was a recent judicial modification, or the obligated person reasonably believed it had expired, a mistake of prohibition (Art. 14.3 CP) can be invoked, lowering or exempting the penalty.

3. Unavoidable fortuitous encounter. Objective coincidence in space (public transport, hospital emergency, mass event) where the obligated person, on detecting the victim's presence, immediately withdraws. The defence proves it with cameras, witnesses or geolocation.

4. Need related to common children. Communications strictly referring to health, schooling or emergency of the common children can be channelled via lawyer or parental coordinator, avoiding direct contact.

5. Mental state when committing the acts. Documented decompensation episode, voluntary intoxication with full effects, or supervening mental disorder may activate mitigating or exempting circumstances.

Difference: Precautionary Measure vs. Final Sentence

It matters to distinguish:

• Breach of precautionary measure (order issued during investigation): punished according to Art. 468.
• Breach of sentence (final order after conviction): same Art. 468 but with imprisonment framework, no fine alternative.

This distinction is relevant for suspension: breach of sentence usually revokes the conditional suspension granted for the principal offence, multiplying the effective conviction.

If You Have Just Been Arrested: What to Do in the First Hours

1. Do not declare to the police without your lawyer present. Any acknowledgement ("she called me", "I didn't know") can be used against you.
2. Request duty legal assistance immediately; if you have a lawyer of trust, communicate it as soon as they take your details.
3. Memorise the place, time, cameras and witnesses so your lawyer can preserve the evidence (recordings are overwritten in days).
4. Keep any message, email or call record showing who initiated the contact or the circumstances.
5. If you face a rapid trial (common in these cases), do not sign a plea bargain without specialist criminal advice.