Criminal Lawyers in Protection Orders

The protection order regulated in Art. 544 ter LECrim is the specific procedural tool designed by the Spanish legislator to articulate comprehensive and urgent protection for victims of domestic and gender-based violence — the persons listed in Art. 173.2 CP — where there is an objective risk situation. Configured as an autonomous precautionary measure of dual criminal-civil nature, it allows the investigating judge to impose in a single decision, within 72 hours of the request, criminal measures (prohibition of approach, communication, residence, custody of weapons) and provisional civil measures (attribution of family home use, custody and visitation regime, maintenance) ensuring the victim's integrity and dignity. The protected legal interest is the physical, psychological, sexual and moral integrity of the victim, together with family peace and the best interest of the minor when concurring. The Supreme Court's Non-jurisdictional Plenary Agreement of 25 November 2008 adds a decisive rule: the victim's consent does not exclude the offence of breaching these measures.

Requirements

The procedural requirements of the protection order are exhaustive. Art. 544 ter LECrim demands the cumulative concurrence of two premises: (i) founded indications of the commission of an offence or misdemeanour against life, physical or moral integrity, sexual freedom, freedom or security of any of the subjects of Art. 173.2 CP (spouse or ex-spouse, partner or ex-partner even without cohabitation, descendants, ascendants, siblings, minors or persons with disability under custody, cohabitant, spouse's children); and (ii) objective risk situation for the victim justifying the adoption of precautionary measures. Case-law has consolidated that the risk must be current, real and not merely hypothetical, derived from concrete circumstances and not from mere cohabitation with the accused. The VioGén system of police risk assessment graduates the qualification in levels (low, medium, high, extreme) that orient the judicial decision without binding it.

Criminal and Civil Measures

The specific measures of the protection order configure a broad catalogue. As criminal measures: prohibition of approach to the victim, their home, workplace, school centres, places of habitual frequentation (minimum distance fixed by the judge, usually between 200 and 1,000 meters); prohibition of communication by any means (in-person, telephone, postal, electronic, social media, interposed person); residence prohibition in a specific locality; precautionary withdrawal of the right to possess and carry weapons; and, in cases of high or extreme VioGén risk, telematic location devices (COMETA bracelets) that geolocate the investigated and automatically alert the Security Forces upon improper approaches. As provisional civil measures, which the victim (or the prosecutor, where there are children) must request and which last 30 days unless family proceedings are brought: attribution of exclusive use of the family home to the victim and children, precautionary suspension of the visitation regime (the default rule since Organic Law 8/2021 amended Art. 544 ter.7 LECrim and Law 8/2021 amended Art. 94 CC), fixing of maintenance for the children, and provisional economic regime.

Procedural Strategy

The procedural strategy of defence at the Art. 544 ter LECrim appearance is built on four technical axes consolidated by case-law. First, the challenge of criminal indications: rigorous analysis of the complainant's account, identification of internal contradictions, presentation of documentary, testimonial, digital or expert evidence neutralising or attenuating the indications; when contemporaneous divorce concurs, the timing may point to a spurious motive. Second, the challenge of objective risk: proof of circumstances ruling out current risk (prolonged de facto separation, separate homes, absence of prior incidents, recent cordial communications, mediation or joint counselling intervention); the defence must contest the police VioGén when it does not adjust to the verifiable reality. Third, the reasoned opposition to the suspension of contact — the default rule since Organic Law 8/2021 — in accordance with the child's best interest, articulating alternatives such as the Family Meeting Point, supervised or guardian-assisted visits. Fourth, the documentary preservation of the investigated's position for the appeal phase (reform and appeal before the Provincial Court) and for the subsequent defence at trial.

Current Forensic Practice

In current forensic practice, the Art. 544 ter LECrim hearing is one of the most decisive procedural moments for the investigated. Organic Law 1/2004 on Comprehensive Protection Measures, Organic Law 8/2021 on comprehensive protection of children, Organic Law 10/2022 on comprehensive guarantee of sexual freedom, Organic Law 1/2025 on Justice Service Efficiency and Civil Code reforms consolidate a robust and restrictive normative framework. The reform or appeal resource against the order does not suspend its execution, prolonging the effects for 3-6 months until the Provincial Court resolution; meanwhile, the investigated is evicted from the home, separated from the children and subject to the imposed prohibitions. Art. 68 of Organic Law 1/2004 also requires these measures to be adopted by a reasoned order assessing their proportionality and necessity. At Alonso Sala, with 15+ years' experience, we undertake technical defence from the first lawyer assistance at the police station and, above all, at the 544 ter hearing, articulating procedural strategies to neutralise the most burdensome measures and preserve parental rights while the main proceedings are resolved.