LECrim Precautionary Measures Reform 2026: Art. 544 bis and What's New

The reform brought in by Organic Law 1/2026 on personal precautionary measures in criminal proceedings has substantially amended Art. 544 bis LECrim, expanding the catalogue of available prohibitions and reinforcing the electronic monitoring mechanisms. As criminal defence lawyers experienced in challenging precautionary measures, we explain the regime in force and how to challenge it effectively.

Precautionary Measures under Art. 544 bis LECrim

Art. 544 bis LECrim allows the investigating judge to order, as a precautionary measure and for the offences listed in Art. 57 CP, one or more of the following prohibitions against the person under investigation:

• Ban on approaching the victim, their relatives or other specified persons, at the distance the judge sets.
• Ban on residing in a particular place or attending it.
• Ban on communication by any means (in person, by phone, electronically).

These measures are ordered by a reasoned ruling and require the classic prerequisites: rational evidence of criminality, a precautionary purpose (protecting the victim or securing the proceedings) and strict proportionality. Breaching them constitutes the offence of breach of a precautionary measure (Art. 468.2 CP), carrying an aggravated penalty.

What's New in Organic Law 1/2026: Digital Measures and Electronic Monitoring

The 2026 reform has added to Art. 544 bis LECrim an expanded catalogue of measures adapted to the digital reality and to effective enforcement:

• Ban on the use of specific social media or digital platforms, where the person under investigation has used them to harass, threaten or monitor the victim.
• Ban on the use of certain electronic devices (smartphones, tablets, computers) in especially qualified cases.
• Electronic monitoring through GPS tags or geolocation devices, to guarantee effective compliance with the approach ban. This mechanism, already established in gender-based violence cases, now extends to other offences with vulnerable victims.
• Reinforced periodic appearances with biometric verification.

The reform pursues a legitimate aim (closing the gaps in effective protection), but requires strict judicial reasoning on the suitability, necessity and proportionality of each digital measure, given the impact on the fundamental rights of Art. 18 of the Constitution and Art. 17 of the Constitution (liberty).

Procedure and Appeals Against the Precautionary Ruling

The procedure for ordering the measures of Art. 544 bis LECrim is:

1. Application by the Public Prosecutor, the private prosecution, or of the investigating judge's own motion.
2. Prior hearing of the person under investigation, assisted by a lawyer, save in cases of justified urgency.
3. Reasoned ruling stating the evidence, the precautionary purpose and the proportionality.
4. Notification to the victim and, where applicable, registration in the VioGén System.

The ruling can be challenged by an application for review before the investigating judge (3 days) and by appeal before the Provincial Court (5 days, Art. 766 LECrim); either may be pursued separately or successively. It is crucial to exhaust the ordinary route in order to preserve the possibility of an eventual constitutional appeal before the Constitutional Court for breach of fundamental rights.

Coordination with Art. 57 CP / Art. 48 CP and VioGén

The precautionary measures of Art. 544 bis LECrim maintain a functional relationship with the accessory penalties of Arts. 48 and 57 CP: restraining order, ban on communication, ban on residence. The precautionary measure anticipates, during the investigation, a possible consequence of conviction.

In the field of gender-based violence, the measures are integrated into the VioGén System of the Ministry of the Interior, which assesses the risk level and triggers police monitoring protocols. The defence must know the risk level assigned by VioGén, because it is one of the factors the judge weighs when ordering and, above all, when maintaining the measures throughout the investigation.

The protection order (Art. 544 ter LECrim) is a specific channel for victims of domestic and gender-based violence: the judge may order the criminal precautionary measures together with urgent civil measures (allocation of the use of the home, custody, maintenance) in a single ruling. Challenging the protection order follows the same general regime.

Defence: Grounds to Challenge the Measure

A serious technical defence against the precautionary measure of Art. 544 bis LECrim must be built on the following lines of argument:

• Insufficient rational evidence: if the accusation rests solely on the victim's statement without peripheral elements of corroboration, the measure lacks a material prerequisite.
• Absence of a precautionary purpose: demonstrating that there is no real risk of repetition, flight or obstruction. The mere fact of the accusation does not justify the measure.
• Disproportion: challenging the duration, the geographical extent or the modality chosen. Less burdensome measures may be requested (periodic court appearance, bail).
• Defective reasoning: stereotyped rulings, without an individualised assessment of the circumstances, breach Art. 24 of the Constitution.
• Breach of digital rights: against the new technological measures of Organic Law 1/2026, raising the impact on the right to the secrecy of communications, to the protection of personal data and to the freedom of information.

The modification of the measures (Art. 544 bis in fine LECrim) may be requested at any time if the circumstances change: new evidence, a change of the victim's address, documented reconciliation, decline of the risk.