Criminal Lawyers in Breach of Sentence

The breach of penalty, security measure or precautionary measure typified in Art. 468 CP is the autonomous offence sanctioning wilful non-compliance with any judicial decision restricting rights, with special procedural frequency in gender violence cases. The protected legal interest is the authority of judicial decisions and, mediately, the effective protection of the victim to whom the measures are addressed. The penological singularity of Art. 468.2 CP is relevant: when the breach affects an Art. 48 CP penalty or a precautionary or security measure of the same kind imposed in proceedings where the injured party is one of the persons listed in Art. 173.2 CP (gender-based and domestic violence), the penalty rises to 6 months to 1 year prison, and consolidated Supreme Court case-law has reinforced the rigor in its application, declaring the victim's consent as irrelevant for excluding typicity.

The methods of commission are extraordinarily broad and case-law has catalogued them exhaustively. Physical approach comprises approaching the victim below the fixed distance (200, 500 or 1,000 meters depending on the decision), or attending home, workplace, children's school centres or places of habitual frequentation. Digital communication reaches any electronic medium: calls (answered or not), SMS, WhatsApp, Telegram, emails, social media messages, "likes" or reactions on publications, public comments, messages on online gaming platforms. Communication through interposed person instrumentalises relatives, friends, common children or third parties to transmit messages. Ostentatious presence in public places frequented by the victim without direct verbal contact is also sanctioned when intent to be noticed is proven.

The penalties in Art. 468 CP are graduated: breach (Art. 468.1) is sanctioned 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; when what is breached is an Art. 48 CP penalty or a measure of the same kind and the injured party is one of the persons listed in Art. 173.2 CP (gender-based or domestic violence), Art. 468.2 CP always carries 6 months to 1 year prison, without fine alternative. The most severe procedural consequence is the revocation of suspension of prior sentences (Arts. 80 and 86 CP): if the investigated had a suspended sentence for the main offence and is convicted of a breach committed during the suspension period, or seriously or repeatedly breaches a prohibition imposed as a condition, the court may revoke the suspension (Art. 86.1 CP) and the suspended sentence is then enforced, the two sentences being served one after the other (Art. 75 CP). Added to this are criminal record, effects on immigration, public employment and regulated professions, and multi-recidivism when several breaches accumulate. The imposition of telematic location bracelets (COMETA system) is usual as a precautionary measure.

The technical defence in breach is built on four axes consolidated by case-law. First, the fortuitous encounter: unsought casual coincidence, followed by immediate withdrawal, is atypical for absence of intent; camera recordings, third-party testimonies, geolocation records and medical reports when appropriate are decisive to prove the exculpatory conduct. Second, the invincible error of prohibition of Art. 14.3 CP: when the victim herself falsely assures the investigated that she has withdrawn the complaint or that the measure is suspended, inducing reasonable error in her conduct, an invincible error excludes criminal liability (if it was avoidable, the penalty is lowered by one or two degrees); proof of messages, audios or emails demonstrating the deception is fundamental. 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); the victim cannot privately "lift" what the judge imposed. Fourth, the challenge to digital evidence: screenshots, telephone records and geolocation data must pass authenticity, chain of custody and privacy compatibility controls; the defence's IT expertise is decisive.

In current forensic practice, breach has consolidated as one of the offences with highest procedural incidence in gender and domestic violence, fed by the growing exhaustiveness of police protocols and digital monitoring. Organic Law 1/2025 on Justice Service Efficiency, Organic Law 1/2004 on Comprehensive Protection Measures against Gender Violence and Organic Law 10/2022 on comprehensive guarantee of sexual freedom configure a robust normative framework. When the victim voluntarily resumes cohabitation with the investigated person, criminal liability remains (Plenary Agreement of 25 November 2008), although the concurring circumstances may weigh in setting the penalty within the legal range. At Alonso Sala, with 15+ years' experience, we undertake technical defence from the first appearance, articulating exhaustive procedural strategy: review of the notifications chain, technical expert evidence on geolocation and digital communications, chronological analysis of facts and construction of the exculpatory narrative oriented to preserve suspension of prior sentences and avoid effective imprisonment.

1. The victim's consent does not exclude the offence. Consolidated Supreme Court doctrine (Non-jurisdictional Plenary Agreement of 25 November 2008) holds the protected person's consent criminally irrelevant: the restraining order protects a public interest —the authority of the judicial decision and the effectiveness of protection—, so the victim cannot privately "lift" what the judge imposed. The practical consequence rarely explained is that the only lawful path is to apply to the court that issued the order for its modification or lifting; until the judge rules, the prohibition remains fully in force and contact —even if the victim initiates and maintains it— remains punishable. Proving that she sought and sustained the communication does not exclude the offence, but it may support a reduction of the penalty and reinforce the absence of any will to disobey.

2. The fortuitous encounter and the subjective element. Art. 468 CP is an intentional offence: it requires knowledge of the order and the will to breach it. An unsought casual encounter, followed by immediate withdrawal from the place, lacks that subjective element and is not punishable; the burden of proving intent lies with the prosecution. The defence is built by documenting the withdrawal reaction —cameras, witnesses, immediate notice to the lawyer— evidencing the absence of intent. A frequent borderline situation is the voluntary resumption of cohabitation prompted by the victim: it does not erase criminal liability, although the concurring circumstances may weigh in setting the penalty within the legal range. Here too, the correct channel is to ask the judge to modify the measure before restoring any contact.