Extension of a Restraining Order in Spain: When and How

The extension of a restraining order is one of the most delicate moments of the case. When the initial term draws to a close, the public prosecutor or the victim may request the extension of the measure, and the judge may grant it even of their own motion if the risk persists. As criminal lawyers, we explain when an extension applies, 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 (Art. 544 ter LECrim)

• Issued during the investigation, before the judgment.
• It lasts, in principle, until the judgment is final.
• 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.

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

• Imposed in the convicting judgment.
• It has a set term in the judgment itself.
• Here an extension, or an extension for new facts, can apply, as well as its lifting once served.

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 restraining order is mandatory in all cases, with specific minimum and maximum durations.

Time starts running after the custodial penalty has been served. If the person was sentenced to 3 years' imprisonment plus 5 years' restraining order, the 5 years start counting on release from prison, not from the judgment.

Extension Procedure

When the accessory penalty approaches expiry, the actors involved may act:

1. Initiative

• Public prosecutor: requests an extension if they assess that the risk persists.
• Victim: may request it through the victim assistance unit.
• Of the court's own motion: the supervising or sentencing judge may raise it.

2. VioGén system report

In gender violence, the VioGén system issues a risk level (not appreciated, low, medium, high, extreme). The level is updated periodically. A medium or higher risk report is the main argument for an extension.

3. Hearing of the convicted person

The judge must hear the convicted person and their defence, who may submit evidence that the risk has ceased: stable employment, completed psychological therapy, sustained geographical distance, absence of incidents.

4. Reasoned ruling

The extension must be granted by a reasoned ruling, appealable through the reversal appeal (3 days) and the appeal (5 days).

How to Oppose the Extension

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 penalty, 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 accessory penalty has been served, the prohibition is NOT lifted automatically: it must be expressly requested from the sentencing court. The request must prove full compliance, the absence of a pending extension and, normally, is accompanied by a report from the public prosecutor.

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. Deadline: 6 months for a minor offence, 2 years for a less serious offence, 3 years for a serious one (Art. 136 CP).