Extending a Restraining Order in Spain: What Can and Cannot Be Prolonged

The extension of a restraining order is one of the most delicate moments of the case. A common misunderstanding should be cleared up first: a restraining-order penalty imposed in a final judgment is not extended, because its duration is set by the judgment; what can be prolonged is the interim measure while the proceedings remain open, at the request of the public prosecutor or the victim, or of the court's own motion if the risk persists. As criminal lawyers, we explain what can and cannot be prolonged, the maximum terms and how to oppose it technically.

Interim Measure vs. Accessory Penalty: Two Different Scenarios

Before discussing extensions, two figures must be distinguished:

1. Interim order (Arts. 544 bis and 544 ter LECrim)

• Issued during the investigation, before the judgment.
• It lasts, in principle, until the judgment is final, and may be maintained after judgment while appeals are pending (Art. 69 Organic Law 1/2004).
• It has no "extension" as such: it subsists on its own while the procedure lasts.
• It can be reviewed or modified at any time if circumstances change. The civil measures of a protection order, by contrast, last 30 days and remain in force for another 30 days from the claim if family proceedings are brought within that period (Art. 544 ter.7 LECrim).

2. Accessory penalty (Arts. 48 and 57 CP)

• Imposed in the convicting judgment.
• It has a set term in the judgment itself.
• It cannot be extended: its duration is the one set in the judgment and it is extinguished once served (Art. 130.1.2 CP). Only a new conviction for new facts can impose another prohibition.

Maximum Duration as an Accessory Penalty

Article 57 CP governs the maximum duration of the prohibition on approach and communication when imposed as a penalty:

• Serious offence (prison penalty over 5 years): up to 10 years in addition to the prison penalty.
• Less serious offence: up to 5 years.
• Minor offence: up to 6 months.
• Gender or domestic violence (Art. 57.2 CP): the prohibition on approach is mandatory in all cases, with the same maximum terms.

Where there is prison, the prohibition is served necessarily at the same time as the prison term (Art. 57.1, second paragraph, CP), which is why the law requires it to last between 1 and 10 years (serious offence) or between 1 and 5 (less serious) longer than the prison term. With 3 years' imprisonment and 5 years' restraining order, both start at the same time: the restraining order continues after release, but its 5 years are not counted from release.

Maintaining or Modifying the Measure: Procedure

Since a final penalty cannot be extended, what is dealt with in practice is maintaining or modifying the interim measure while the proceedings continue (Arts. 544 bis and 544 ter LECrim), including after judgment during appeals (Art. 69 Organic Law 1/2004), or a new measure for new facts. The actors are:

1. Initiative

• Public prosecutor: asks for the measure to be maintained if they assess that the risk persists.
• Victim: may request it directly or through their lawyer.
• Of the court's own motion: the judge hearing the case may order it.

2. VioGén system report

In gender violence, the VioGén system issues a risk level (low, medium, high, extreme). The level is updated periodically. A medium or higher risk report is the main argument for maintaining the measure.

3. Hearing the defence

The defence of the person under investigation or accused may submit evidence that the risk has ceased: stable employment, completed psychological therapy, sustained geographical distance, absence of incidents.

4. Reasoned ruling

The decision is taken by a reasoned ruling, open to a reversal appeal (3 days) and an appeal (5 days).

How to Oppose Maintaining the Measure

Three lines of defence work in practice:

1. Cessation of the objective risk

• The convicted person's change of residence to another province.
• Completion of a treatment programme.
• Employment and family stability (new partner, children).
• Absence of incidents throughout the initial duration.

2. The victim's position

Although the victim cannot unilaterally revoke the measure, their express renunciation of its maintenance (appearance before the judge, with their own legal assistance) is a factor to be assessed. Case law requires caution in gender violence — the judge may maintain the measure even against the victim's wishes — but in offences without reoffending it is a weighty argument.

3. Lack of reasoning in the VioGén report

VioGén reports are produced from standardised questionnaires. If the report rests on old data or fails to incorporate the recent evolution of the case, the defence can challenge its evidential value and ask for its updating before the hearing.

Lifting Once the Term Is Served

Once the term of the penalty has been served, the prohibition is extinguished (Art. 130.1.2 CP): no extension or ruling lifting it is needed for it to stop binding. Even so, it is advisable to ask the sentencing court to declare it extinguished and notify the registers and the police, to avoid incidents at checks or in the VioGén System.

Once the term is served, it is also appropriate to request the cancellation of the criminal record arising from the conviction that gave rise to the restraining order. Periods under Art. 136.1 CP, depending on the penalty imposed: 6 months for minor penalties; 2 years for penalties not exceeding 12 months and those imposed for negligent offences; 3 years for other less serious penalties under 3 years; 5 years for less serious penalties of 3 years or more; and 10 years for serious penalties.

The separate file in which pre-trial detention, bail and Article 544 bis precautionary measures are processed is governed by Article 544 LECrim.