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 amended Art. 544 bis LECrim, adding the purpose of preventing re-offending and toughening the procedural response to breaches of the prohibitions. As criminal defence lawyers experienced in challenging precautionary measures, we explain the regime in force and how to challenge it effectively. The deadlines to challenge the order are short — 3 days for the application for review and 5 days for the appeal (Art. 766 LECrim) — and breaching the prohibition is an offence under Art. 468 CP, carrying 6 months to 1 year in prison where the protected person is a victim of the offences in Art. 173.2 CP.

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 for Art. 544 bis LECrim

The 2026 reform amended Art. 544 bis LECrim in two specific respects:

• Purpose of the measure: alongside the protection of the victim, the provision now expressly includes preventing re-offending as a ground for the bans on residence, approach and communication.
• Reinforced response to breaches: if the person under investigation breaches the measure, the judge must call the hearing of Art. 505 LECrim to consider pre-trial detention (Art. 503), the protection order of Art. 544 ter or another precautionary measure entailing a greater restriction of personal liberty, taking into account the impact of the breach, its reasons, seriousness and circumstances.

In addition, since Organic Law 10/2022 the provision allows, where one of the offences of Article 3 of the Comprehensive Guarantee of Sexual Freedom Act is under investigation, the use of electronic monitoring devices to supervise compliance, by reasoned ruling. Every measure still requires strict judicial reasoning on its suitability, necessity and proportionality, given the impact on the rights of Arts. 17 and 19 of the Constitution.

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. The deadlines run in working days from service of the order: you can check the exact expiry date with our procedural deadline calculator. 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.
• Electronic monitoring devices: where telematic monitoring is ordered (Art. 544 bis in fine, introduced by Organic Law 10/2022), demanding reinforced reasoning on its necessity and raising the impact on privacy and the protection of personal data.

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.