Breaching a Restraining Order: What Counts as a Breach

Breaching a restraining order is no minor matter: it is an autonomous offence of order breach governed by Article 468 of the Criminal Code, with prison penalties that may apply even where the breached order was an interim one. The most relevant point: the offence is committed even if the contact is consented to by the victim, according to consolidated Supreme Court case law. As criminal lawyers, this guide explains what counts as a breach, the viable defences and how to avoid actual imprisonment.

What Article 468 CP Says

Article 468 CP distinguishes three forms:

• Art. 468.1 CP — Breach of a sentence: breach of any penalty, security measure or interim measure. Penalty: 6 months to 1 year in prison, or a fine.
• Art. 468.2 CP — Aggravated breach: where a restraining order or prohibition on communication imposed in a final judgment for gender or domestic violence is breached. Penalty: mandatory imprisonment of 3 months to 1 year (a fine is not an alternative).
• Art. 468.3 CP — Breach of electronic monitoring: tampering with or disabling the GPS tag. The same range, with the aggravating factor of an insidious means.

What Counts as a Breach

The typical conduct includes any act that infringes the imposed prohibitions. Case law has clarified the following:

• Physical approach: coming within the prohibited distance, even by chance and with no verbal contact.
• Direct communication: a call, WhatsApp, SMS, email or social media message, even if the victim does not reply or mutes it.
• Indirect communication: sending messages through third parties (relatives, friends, children), provided the aim is for them to reach the victim.
• Interaction on social media: a like, comment, mention or follow on the victim's public profiles.
• Presence in a prohibited place: being at the home, workplace or frequented area, even if the victim is not present at that moment.

And If the Victim Consents? (Supreme Court Doctrine)

One of the most debated questions. The Supreme Court, in repeated judgments, has set the following criterion:

Practical consequence: even if the couple reconciles and the victim initiates the contact, the breach remains an offence. What can mitigate the penalty (not exclude the offence) is proving:

• That the contact was initiated and maintained by the victim.
• That the convicted person tried to move away and the victim prevented it.
• That the lifting or modification of the order has been requested from the court.

Viable Defences

Despite the strictness of the doctrine, there are defence lines that case law admits:

1. An involuntary chance encounter

Crossing paths in the street, coinciding on public transport or meeting in a shopping centre unknowingly is not an offence if the convicted person moves away immediately. The defence must prove the moving-away reaction (witnesses, cameras, a message to the lawyer).

2. Error as to the prohibited distance

Where the order sets "300 m from the home" and the convicted person walks down a parallel street unaware of the exact limit, an error of fact (Art. 14 CP) may be argued if justifying circumstances concur (a poorly notified order, the absence of precise instructions).

3. Necessity

Facts that compel the approach: rescuing children in danger, a medical emergency of the victim or a shared minor, etc. It is exceptional and requires proof of proportionality.

4. Absence of intent

Breach requires intent (at least eventual intent). If a total absence of knowledge or will is proven — for example, an alert due to faulty GPS-tag geolocation — there may be acquittal or atypicality.

5. A prior modification request

Having formally asked the judge to modify the order before the breach does not exempt from liability, but mitigates the penalty and shows the absence of an intent to disobey.

The Specific Risk of WhatsApp and Social Media

A recurring source of convictions. Case law is very clear: any message, like or reaction counts as prohibited communication, even if:

• The message is never read (it was sent and deleted).
• The victim mutes or blocks it.
• It is sent from a new or anonymous account (metadata usually identifies the author).
• The message is "neutral" or "friendly" (a birthday greeting, a photo of the children).

Practical rule: throughout the entire duration of the order, zero digital contact. If the victim initiates contact, do not reply, save screenshots and report it to the lawyer.

Aggravation for Repetition

A second breach is usually processed without suspension of the penalty, which means actual entry into prison even if the penalty is only a few months. Guilty pleas in previous breaches count against the person: the judge assesses persistence as an indicator of risk and applies the penalty in the upper half of the range.

Tampering With Electronic Monitoring (Art. 468.3 CP)

Where the GPS tag is imposed and the convicted person removes it, hides it, submerges it in water or uses signals to confuse its tracking, Art. 468.3 CP applies, with the same penalty but the aggravating factor of an insidious means. The defence can challenge the reliability of the device (documented faults, battery failures, geolocation errors) where there is no clear intent to tamper.