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A protection order is issued at an urgent hearing and takes immediate effect on the lives of both persons affected: where one may live, at what distance, with whom one may communicate and who cares for the children. While it is in force, neither reconciliation nor the protected person’s consent removes the prohibition.
In brief. The restraining order is not negotiated between the parties: it is modified before the judge. The Supreme Court’s settled doctrine is that the protected person’s consent does not exclude the offence of Article 468.2. Almost everything turns on two questions: whether the person knew the exact content of the measure, and whether the proven approach was voluntary or merely fortuitous.
A protection order is issued at an urgent hearing and produces immediate effects on the lives of the two persons concerned: where one may live, at what distance one may be, with whom one may communicate and who is left in charge of the children. While the decision remains in force, neither reconciliation nor the protected person’s consent deprives the prohibition of effect.
The Supreme Court maintains that doctrine in settled terms: the measure is imposed by the judge to protect a legal interest, and only the judge can lift or modify it. Returning to live together without first asking the court to lift the measure is the fastest route to a conviction for breach.
| Measure | Provision | Framework and duration | Deciding factor |
|---|---|---|---|
| Protection order (integral statute) | 544 ter LECrim | In force while the case lasts, always reviewable | Indications of an offence and an objective risk situation |
| Interim restraining order | 544 bis LECrim | Duration fixed in the order, extendable and modifiable | Strict necessity and proportionality of the restriction |
| Prohibition of approach (ancillary penalty) | 48.2 CP | Up to 10 years for serious offences; up to 5 otherwise | Gravity of the facts and dangerousness found in judgment |
| Prohibition of communication (ancillary penalty) | 48.3 CP | Same duration as the prohibition of approach | Prior use of digital means for harassment |
| Mandatory imposition (partner or ex-partner) | 57.2 CP | Prohibition of Art. 48.2 in every case | Spousal or analogous affective relationship |
| Breach of measure or penalty | 468.2 CP | Imprisonment of 6 months to 1 year | Proven knowledge of the measure and voluntariness |
| Tampering with the device | 468.3 CP | Fine of 6 to 12 months | Deliberate disabling versus mere technical failure |
| Civil measures (home, custody, maintenance) | 544 ter.7 LECrim | Thirty days’ validity | Filing the family claim within the period |
This framework is indicative; the duration and scope of each measure are fixed judicially according to the specific facts and circumstances of each case.
In restraining and breach cases almost everything turns on two questions: whether the person under investigation truly knew the content and exact scope of the measure, and whether the proven approach was voluntary or merely fortuitous. The notification, the geolocation and the records of the tracking device decide the outcome far more than either party’s account. We reconstruct the notification record, the movements and the technical logs before setting the procedural strategy, applying LIWARD, Legal Intelligence Warfare for Defense, our own methodology integrating legal intelligence, case-law analytics and e-forensics into a single procedural strategy.
Four everyday decisions turn a controlled situation into a breach prosecution or into the loss of protection obtained. Believing that reconciliation cancels the order: the protected person’s consent does not exclude the offence of Article 468.2. Replying to a message from the protected person: even if the message originates from her, replying is communicating, and a single reply completes the breach of the Article 48.3 prohibition. Letting the thirty days of the civil measures lapse: the use of the home, custody and maintenance expire unless the family claim is filed in time. And failing to appeal or request modification: the measure is reviewable through reform and appeal, and can be modified when circumstances change; enduring it in silence for years is a decision, not a destiny.
Those under a restraining or communication prohibition: precise knowledge of its scope, requests for modification and defence against breach allegations.
Victims needing a protection order, its extension or the enforcement of the civil measures: urgent application and ratification in the family courts.
Those accused under Article 468.2: analysis of the notification, of the voluntariness of the approach and of the tracking-device records.
Situations where the order affects custody, visits and the family home: coordination of the criminal and family proceedings within the deadlines.
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