Restraining Order: the Consequences of Breaching It
In this article
Breaching a restraining order in Spain (Art. 468 CP) is a separate offence from the underlying case and carries 6 months to 1 year in prison where it arises in a gender-violence context, or a fine of 12 to 24 months otherwise — on top of any sentence in the main proceedings. Case law treats almost any form of contact as a breach, including messages, calls, social media interaction or contact through third parties, and the Supreme Court has confirmed that the protected person's own consent to contact does not excuse the offence, since only the judge can lift the order. If contacted by the protected person, the recommended course is not to respond, to preserve evidence of the contact, and to inform a lawyer immediately.
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If you have a restraining order and are thinking of approaching the protected person — or if they have contacted you — read this first. The breach of a restraining order (Art. 468 CP) is a separate offence that can land you in prison for 6 months to 1 year, in addition to the sentence in the main proceedings. As criminal lawyers experienced in breach of court orders, we explain the consequences.
What Is a Restraining Order?
It is a court decision that prohibits a person from approaching another (the victim) within a set distance (usually 300-500 metres), from communicating with them by any means, and from going to certain places (their home, workplace, the children's school). It can be ordered as:
- A precautionary measure: during the investigation, before trial.
- An accessory penalty: after conviction, as part of the judgment.
- A protection order (Art. 544 ter LECrim): on an urgent basis, within 72 hours, in cases of gender violence.
Conduct That Constitutes a Breach
Case law has defined a broad catalogue:
- Physical approach: coming within less than the set distance. Even "coinciding" at the supermarket if you do not move away immediately.
- Messages of any kind: WhatsApp, SMS, emails, voice messages, DMs on Instagram or TikTok.
- Phone calls: even "missed" or unanswered ones.
- Contact through third parties: using friends, relatives or even the children as intermediaries.
- Social media: likes, comments, friend requests, sending photos.
- Gifts or letters: sending flowers, parcels or notes through courier services.
⚠️ Even If They Seek You Out
If the protected person contacts you, calls you or seeks you out, you are still committing an offence if you respond. The Supreme Court (Plenary, 25/11/2008) made clear that the victim's consent does not provide an exemption. The order is made by the judge, and only the judge can lift it.
Criminal Consequences
- Prison 6 months - 1 year: breach in a gender-violence context (Art. 468.2 CP). No option of a fine.
- Fine 12-24 months: a general breach outside a gender-violence context (Art. 468.1 CP).
- Toughening of the measures: the judge can extend the distance, impose a GPS tag, or even order pre-trial detention.
- New criminal proceedings: separate proceedings are opened, independent of the main case.
- Criminal record: it creates an additional criminal record that hinders the suspension of the sentence in the main case.
What to Do If They Contact You?
- Do NOT respond. Not an "ok", not an emoji, not a "leave me alone".
- Keep the evidence: a screenshot of the message with the date and time.
- Call your lawyer: inform them immediately.
- Apply to the court: your lawyer can apply for the modification or lifting of the order if both parties wish to resume contact.
Possible Defences
- A chance encounter: a casual coincidence in a public place + moving away immediately.
- Mistake as to the limits: the order did not clearly specify the place or the distance.
- An emergency involving the children: minimal contact for the medical emergency of a minor child, within the visitation arrangements.
- Defective notification: the accused was not notified of the order or of its exact terms.
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Frequently asked questions
What is the penalty for breaching a restraining order?
Breach of a restraining order in a gender-violence context (Art. 468.2 CP) is punished with 6 months to 1 year in prison, with no option of a fine. A general breach outside a gender-violence context (Art. 468.1 CP) carries a fine of 12 to 24 months. The judge can also toughen the measures, and it creates a criminal record that hinders the suspension of the sentence in the main case.
Is it an offence if the protected person is the one who contacts me?
Yes. Even if the protected person calls you, writes to you or seeks you out, you are still committing an offence if you respond. The Supreme Court (Plenary, 25 November 2008) held that the protected person's consent does not provide an exemption: the order is made by the judge, and only the judge can lift it.
What conduct amounts to a breach of the restraining order?
Physical approach within less than the set distance, messages by any means (WhatsApp, SMS, social media), phone calls — even missed ones — contact through third parties (relatives or the children themselves), and sending gifts or letters through courier services.
How is a breach of a restraining order defended?
By showing a chance encounter in a public place followed by moving away immediately, defective notification of the order, a mistake as to the limits or distance, or an emergency involving minor children within the visitation arrangements. Not giving a statement without a lawyer is essential.
I'm accused of breaching the order but it was a chance encounter — what should I do?
A chance encounter in a public place is not an offence if you move away immediately, but you need to prove it: gather witnesses, camera footage or a message to your lawyer sent at the time showing you moved away. Do not give a statement without a lawyer, and remember that the protected person's initiative or consent does not exempt you from liability (Art. 468 CP): only the judge can lift the order.
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