Restraining Order: the Consequences of Breaching It

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.

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?

1. Do NOT respond. Not an "ok", not an emoji, not a "leave me alone".
2. Keep the evidence: a screenshot of the message with the date and time.
3. Call your lawyer: inform them immediately.
4. 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.

We provide a defence specialised in the breach of court orders. Before replying to that message, call us on +34 91 078 65 74.