Breach of Sentence, Measure or Custody (Art. 468 CP)
Defence against charges of breaching a sentence, a precautionary measure or a security measure, including the aggravated gender-violence form under Art. 468 CP.
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Breach of sentence is the offence committed by anyone who fails to comply with a judicial decision already imposed and notified: a penalty, a precautionary measure or a security measure. It is governed by Article 468 of the Criminal Code and protects the effectiveness of court decisions and, in its aggravated form, the safety of victims of gender violence. At the office of Alonso Sala (Velázquez 27, Madrid) we take on the technical defence of those investigated or accused under this offence, rigorously analysing whether all the elements required by law are present.
The basic offence under Article 468.1 CP
Article 468.1 CP penalises anyone who breaches their sentence, security measure, imprisonment, precautionary measure, transfer or custody. The penalty depends on the person's situation: 6 months to 1 year imprisonment if they were deprived of liberty, and a fine of 12 to 24 months otherwise. This covers very diverse situations: breaching a permanent-location penalty, community service, an ordinary restraining order, or non-compliance with a prison leave that does not amount to escape.
The core element is intent: the accused must know of the existence and scope of the prohibition or the penalty and, even so, breach it deliberately. It is therefore decisive to verify whether the decision was properly notified, whether the person understood its content, and whether the breach was conscious or resulted from a mistake, force majeure or a state of necessity.
The aggravated gender-violence form (Art. 468.2 CP)
Article 468.2 CP imposes in all cases 6 months to 1 year imprisonment on anyone who breaches a penalty among those provided for in Article 48 of the Criminal Code, or a precautionary or security measure of the same nature imposed in criminal proceedings in which the offended party is one of the persons referred to in Article 173.2 CP, as well as on anyone who breaches the supervised-release measure. In turn, Article 468.3 CP imposes a fine of 6 to 12 months on anyone who disables or disrupts the normal functioning of the technical monitoring devices set up to monitor compliance with penalties, security measures or precautionary measures, fails to carry them, or omits the measures required to keep them in proper working order.
A recurring issue in these cases is the role of the victim's consent: when the protected person themselves resumes contact or consents to the approach. The case law of the Supreme Court has qualified the scope of that consent, which does not operate automatically as a ground excluding liability, requiring a case-by-case analysis of the specific dynamics of the facts.
Distinction from the escape of prisoners (Arts. 469 to 471 CP)
The breach under Article 468 CP must be distinguished from the escape of prisoners. Article 469 CP imposes 6 months to 4 years imprisonment on convicts or prisoners who escape using violence or intimidation against persons, force against property, or by taking part in a riot. Article 470 CP penalises private individuals who help a convict, prisoner or detainee to escape, and Article 471 CP aggravates the penalty when the assistance is provided by a public official in charge of their transfer or custody. The mere escape, without violence, force or riot, of an offender serving a sentence is treated, depending on the case, as a breach under Article 468 CP. Determining which offence applies has a direct impact on the penalty.
Why specialised defence matters
The difference between a fine and a prison sentence often depends on technical details: proper proof of notification, the presence or absence of intent, whether the person was deprived of liberty, classification as breach or escape, or the existence of grounds of justification or exculpation. At Alonso Sala we study each file from the outset to build the strongest possible defence strategy.
If you are under investigation or charged with breach of sentence, measure or custody, you may contact our office by calling 91 078 65 74.
Penalties & Consequences: Breach of Sentence, Measure or Custody (Art. 468 CP)
| Type / Scenario | Criminal Penalty |
|---|---|
| Basic offence (Art. 468.1 CP) | 6 months to 1 year imprisonment if the person was deprived of liberty; a fine of 12 to 24 months otherwise. |
| Gender violence (Art. 468.2 CP) | 6 months to 1 year imprisonment for breaching Art. 48 CP penalties in gender-violence proceedings or the supervised-release measure. |
| Monitoring devices (Art. 468.3 CP) | A fine of 6 to 12 months for anyone who disables or disrupts the normal functioning of the technical monitoring devices. |
* Penalties shown are indicative. The actual penalty depends on case circumstances, applicable mitigating and aggravating factors.
Defense Strategy: Breach of Sentence, Measure or Custody (Art. 468 CP)
Absence of intent or valid notification
We examine whether the breached decision was effectively notified and whether the accused genuinely knew the scope and validity of the prohibition or penalty, cornerstones of the offence under Art. 468 CP.
Reclassification as against escape of prisoners
We analyse whether the facts amount to a breach under Art. 468 CP or to escape under Arts. 469 to 471 CP, a distinction that directly conditions the penalty sought.
Analysis of consent and grounds for exclusion
In the gender-violence form we examine the role of the protected person's consent and the possible presence of mistake, force majeure or state of necessity.
Defense Guide: Obstruction of Justice (Arts. 463-467 CC)
Penalty Table
| Type | Penalty | Article |
|---|---|---|
| Violence or intimidation against parties, lawyers, witnesses, experts or interpreters | Prison 1 to 4 years + fine 6-24 months | Art. 464.1 CP |
| Reprisals against witnesses, experts for their actions | Prison 1 to 4 years + fine 6-24 months | Art. 464.2 CP |
| Destruction or concealment of documents or evidence | Prison 6 months to 3 years | Art. 465 CP |
| Lawyer or attorney revealing client secrets | Fine 12-24 months + special disqualification 1-4 years | Art. 466 CP |
| Professional disloyalty: lawyer harming client through action or omission | Fine 6-24 months + special disqualification 2-4 years | Art. 467 CP |
Obstruction of justice (Arts. 463-467 CC) protects the proper functioning of the Administration of Justice against acts of intimidation, evidence destruction and professional disloyalty.
Key Defense Strategies
Absence of Specific Intent
Art. 464 requires direct intent to prevent or obstruct judicial action. Legitimate communications, rights advisories, or case discussions do not constitute intimidation.
Prior to Proceedings
Document destruction carried out before the start or knowledge of legal proceedings does not constitute obstruction (Art. 465). The date of destruction is determinative.
Legitimate Exercise of Defense
Advising a client on their rights, preparing their defense, or contacting the opposing party through legal channels can never be classified as obstruction.
Communication Context
Messages that appear threatening in isolation may be benign in context. Comprehensive forensic analysis of communications is key to dismantling intimidation charges.
Relevant Case Law
Doctrina del TS (Sala 2ª)
Mere silence or refusal to cooperate does not constitute obstruction of justice. Citizens have no general duty to assist police investigations absent an express court order.
Doctrina del TS (Sala 2ª)
Routine document destruction in the normal course of business operations before an investigation begins does not constitute obstruction under Art. 465 CP, even if those documents later become relevant.
Doctrina del TS (Sala 2ª)
Informing someone of their legal rights, including the right to remain silent, cannot constitute obstruction of justice or witness intimidation under Art. 464 CP.
Doctrina del TS (Sala 2ª)
Art. 464 CP intimidation requires threats that are serious, suitable, and immediate enough to restrict the freedom of action of a witness or expert. Mere expressions of displeasure or criticism do not reach the criminal threshold.
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