Criminal Lawyers for Breach of Family Measures
Urgent technical defense against accusations of breaching restraining or communication orders in family settings
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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, substitution of sentence with community service, sentence suspensions conditioned on treatment, 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). Supreme Court case-law has sanctioned as breach apparently minor gestures: sending an emoji, "liking" on Instagram, sending a gift, making a missed call or even accepting the victim's own invitation to her home (STS 1156/2005 and subsequent).
The penalties are significant and, most importantly, are imposed on an already criminal base. Art. 468.2 CP punishes breach of penalty or security measure with 6 months to 1 year prison; Art. 468.1 sanctions breach of precautionary measure with 3 months to 1 year prison or 6-24 months' fine, depending on the nature of the measure and the context. The critical element is procedural: conviction for breach (i) revokes the suspension of prior suspended sentences, forcing effective imprisonment (Arts. 86 and 80 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. Accessories include extension of the prohibition of approach and communication and, where appropriate, imposition of telematic location bracelet (GPS).
The technical defense 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 and unjustified 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 of 25 November 2008 and STS 39/2009) 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. Organic Law 1/2025 on Justice Service Efficiency has reinforced telematic monitoring mechanisms (COMETA GPS bracelets), digital notifications and automated incident tracking. Recent Supreme Court case-law has clarified the criteria for attribution when the victim voluntarily resumes cohabitation with the investigated, maintaining criminal liability but modulating the penalty according to concurring circumstances. 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 integrate the breach of Art. 468 CP. 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.
The Consent Myth
"She told me to come over". Careful: the victim's consent does NOT exempt you from liability. The order is a public matter and she has no power to revoke it.
Chance Encounters
If you cross paths in the street by chance and you turn around, there is no offence. The offence requires that you seek the encounter or refuse to leave.
Family Measure Breach
We provide specialised technical assistance ranging from technological expert evidence (geolocation analysis) to defense 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), committing a new offence (the breach) revokes that suspension. You will enter prison to serve BOTH sentences.
"Technology (GPS, call logs, social media) has turned breach of orders into a digital-trail offence. Our job is to examine and challenge the authorship and integrity of those trails."
Breach or Mistake?
Proving there was no will to breach is the only escape route. We defend cases of notification errors, casual encounters, and evidence manipulation.
- checkGeolocation analysis
- checkTechnical defense before the Duty Judge
- checkAvoidance of prison entry
Family Crimes in Spain: Domestic Violence, Child Abduction & Coercion — Defence Guide
Family crimes in Spanish criminal law encompass domestic violence and habitual abuse (Art. 153, 173.2 CP), child abduction by a parent (Art. 225 bis CP), breach of family obligations (Art. 226-227 CP), and gender-based violence (LO 1/2004). These cases are heard by specialised Violence Against Women Courts (Juzgados de Violencia sobre la Mujer) and require defence strategies that address both the criminal proceedings and the parallel family law implications.
Penalty Table: Family Crimes
| Offence | Article | Description | Penalty |
|---|---|---|---|
| Habitual domestic abuse | Art. 173.2 | Repeated physical or psychological violence in family | 6 months – 3 years |
| Assault spouse/partner | Art. 153.1 | Single act of violence against intimate partner | 6 months – 1 year |
| Child abduction by parent | Art. 225 bis | Removing child from custodial parent or jurisdiction | 2 – 4 years prison |
| Failure to pay child support | Art. 227 | Non-payment of court-ordered maintenance for 2+ months | 3 months – 1 year |
| Child-to-parent violence | Art. 153.2 | Minor's violence against parents or ascendants | 3 months – 1 year |
| Breach of restraining order | Art. 468 | Violating court-imposed protection measures | 6 months – 1 year |
Key Defence Strategies
Mutual Aggression Defence
If both parties engaged in violence, the defence may argue mutual aggression, which can reclassify the offence. However, in gender-violence cases (male→female partner), this defence is heavily scrutinised under LO 1/2004.
False Accusation Defence
In custody disputes, accusations of domestic violence may be strategically motivated. The defence examines inconsistencies in testimony, delayed reporting, and contradictions with objective evidence (medical reports, witness statements).
Lack of Habituality
Art. 173.2 requires habitual abuse — a pattern of repeated acts. Isolated incidents may only constitute the lesser offence of Art. 153. The defence must demonstrate that the alleged pattern lacks the consistency or frequency required.
Consent to Contact (Breach of Order)
In breach of restraining order cases, if the protected person voluntarily initiated contact, this may negate the mens rea of the accused. The Supreme Court has accepted this defence in specific circumstances.
Key Case Law
The Supreme Court clarified that habituality requires at least three acts of violence, though they need not result in separate convictions. The 'climate of violence' is assessed as a whole, considering frequency, proximity in time and the overall atmosphere of fear.
The Court held that mutual violence does not automatically exclude gender-based violence classification. If the victim's response was reactive self-defence, the aggressor cannot benefit from reclassification. Context and asymmetry of power are key factors.
In parental abduction cases involving cross-border elements, the Court applied the 1980 Hague Convention, ordering the child's return. The 'grave risk' exception (Art. 13.b) requires concrete evidence of danger, not merely allegations.
Do you need specialised legal assistance?
The judicial system is complex. We have the criminal-law specialisation and technical resources required to take on the defence.