Criminal Lawyers for Breach of Family Measures

Breach of Family Measures: Concept, Modalities and Penalties (Art. 468 CP)

Breach of precautionary measure, penalty or security measure under Art. 468 CP is the autonomous offence punishing wilful non-compliance with any judicial decision restricting rights in family and violence settings: prohibitions of approach, prohibitions of communication, removal from home, community service penalties, supervised liberty or accessory measures. The protected interest is the authority of judicial decisions and, mediately, the effective protection of the victim for whose protection the measures are ordered. Consolidated case-law has clarified that the offence demands intent —knowledge of the measure and will to breach it— and instant consummation (any contact or approach suffices).

The methods of commission are extraordinarily broad. Breach by physical approach covers approaching the victim closer than the fixed distance (200, 500 or 1,000 meters, depending on the decision), even accidentally if spontaneous withdrawal is not proven. Breach by communication reaches any medium: calls, text messages, WhatsApp, emails, social media messages, "likes" on posts, and even indirect communication through third parties (relatives, friends, common children used as messengers). Apparently minor gestures can therefore amount to breach: sending an emoji, "liking" on Instagram, sending a gift, making a missed call or even accepting the victim's own invitation to her home.

The penalties are significant and, most importantly, are imposed on an already criminal base. Art. 468.2 CP always punishes with 6 months to 1 year prison breach of a penalty or precautionary measure of the same nature when the offended person is one of those covered by Art. 173.2 CP; in other cases, Art. 468.1 CP sanctions breach with 6 months to 1 year prison if the offender was deprived of liberty, and with a 12 to 24 months' fine in other cases. The critical element is procedural: conviction for breach (i) may revoke the suspension of prior suspended sentences, leading to actual imprisonment, if the offence was committed during the suspension period and shows that the expectation on which the suspension rested can no longer be maintained (Art. 86.1.a CP); (ii) consolidates the criminal record with effects on public employment, immigration and regulated professions; and (iii) generates a recidivism pattern that hinders suspension of future sentences. In addition, breach of a precautionary measure requires the judge to convene the hearing under Art. 505 LECrim to decide on pre-trial detention, a protection order or another precautionary measure more restrictive of liberty (Art. 544 bis LECrim), such as electronic monitoring with a tag.

The technical defence in breach is built on four axes consolidated by case-law. First, absence of intent: the Supreme Court demands effective knowledge of the measure's validity and scope; lack of personal notification, expiry of the period or error on subsistence of the prohibition exclude typicity. Second, the chance encounter: casual coincidence followed by immediate withdrawal is not punishable, although the evidentiary burden materially shifts to the investigated, who must prove withdrawal; camera recordings, third-party testimonies and geolocation records are decisive. Third, the irrelevance of the victim's consent: consolidated Supreme Court doctrine (Non-jurisdictional Plenary Agreement of 25 November 2008) declares the consent of the protected person criminally irrelevant, as it concerns a collective legal interest (judicial authority). Fourth, challenge to digital evidence: screenshots, telephone records and geolocation data must pass authenticity controls, chain of custody and compatibility with the right to privacy.

In current forensic practice, breach has consolidated as one of the offences with highest procedural incidence, particularly in gender and domestic violence contexts. Telematic monitoring (COMETA GPS tags), digital notifications and automated incident tracking have multiplied its detection. The victim voluntarily resuming cohabitation with the investigated party does not exclude criminal liability (Supreme Court Non-jurisdictional Plenary Agreement of 25 November 2008); such circumstances can only weigh in the individualisation of the penalty. At Alonso Sala, with 15+ years' experience, we assume defence with an exhaustive procedural strategy: full review of the measure's notification chain, technical expert evidence on geolocation and digital communications, analysis of the investigated's effective will and articulation of defence both in the investigation phase (to prevent provisional detention) and at trial, always prioritising preservation of suspension of prior sentences.

The Victim's Consent and Inducement

A recurring issue is the position of the protected victim who consents to or even prompts the encounter. Consolidated Supreme Court doctrine is firm: the consent of the protected person does not exempt the investigated party, because the protected legal interest —the effectiveness of the judicial decision— is not at the victim's disposal. That said, the protected person who invites or induces the contact does not commit the offence of breach nor is liable as a necessary cooperator, since they cannot be an active subject of breaching a measure issued in their favour. This asymmetry demands a careful defence: consented contact remains typical for the investigated party, but the victim's conduct may notably modulate the individualisation of the penalty.

Breach of the Telematic Device

Non-compliance may also occur through manipulation or neglect of the telematic control device (COMETA system). Deliberately letting the battery run out, leaving the coverage area, placing the device in signal-blocking containers or physically tampering with the bracelet may amount to the offence in Art. 468.3 CP, punishable by a fine of 6 to 12 months. The defence requires a rigorous technical analysis of the device records: incidents due to technical failures, occasional coverage losses or geolocation errors are frequent and do not necessarily amount to wilful conduct. Expert evidence on the system logs and the chronology of the alerts is decisive to distinguish technical failure from voluntary non-compliance.

Family Measure Breach

We provide specialised technical assistance ranging from technological expert evidence (geolocation analysis) to defence in court, to prevent a minor incident from resulting in actual imprisonment.

Critical Consequences

Many clients underestimate this offence ("I only sent a WhatsApp to see how she was"). The problem is procedural:

• Pre-trial detention: If you already had a conviction for violence and breach the order, the judge may find a high risk to the victim and remand you in custody until trial.
• Revoked suspended sentence: If your earlier sentence was suspended (you did not go to prison), a conviction for a new offence committed during the suspension period (the breach) allows it to be revoked where it shows that the expectation on which it rested no longer holds (Art. 86.1.a CP). If it is revoked, you will go to prison to serve the suspended sentence, plus the one for the breach.