Article 544 ter Spanish Criminal Procedure Act: Protection order for victims of domestic violence

1. The investigating judge shall issue a protection order for victims of domestic violence in cases in which, there being well founded indications of the commission of an offence against the life, physical or moral integrity, sexual freedom, liberty or security of any of the persons mentioned in Article 173.2 of the Criminal Code, there results an objective situation of risk for the victim requiring the adoption of one of the measures of protection regulated in this article.

2. The protection order shall be ordered by the judge of its own motion or at the instance of the victim, of a person having with the victim any of the relationships indicated in the preceding paragraph, or of the public prosecutor.

Without prejudice to the general duty to report provided for in Article 262 of this Act, assistance entities or bodies, whether public or private, which become aware of any of the acts mentioned in the preceding paragraph shall bring them immediately to the knowledge of the duty judge or of the public prosecutor so that the procedure for the adoption of the protection order may be commenced or applied for.

3. The protection order may be applied for directly before the judicial authority or the public prosecutor, or before the law enforcement forces, the victim support offices or the social services or assistance institutions dependent upon the public administrations. That application must be forwarded immediately to the competent judge. Where doubts arise as to the territorial jurisdiction of the judge, the procedure for the adoption of the protection order must be commenced and determined by the judge before whom it was applied for, without prejudice to the subsequent transmission of the proceedings to the judge who has jurisdiction.

The social services and the institutions referred to above shall facilitate the application for the protection order for the victims of domestic violence to whom they are to provide assistance, making available to them for that purpose information, forms and, where appropriate, electronic channels of communication with the administration of justice and with the public prosecutor.

4. Upon receipt of the application for a protection order, the duty judge shall, in the cases mentioned in paragraph 1 of this article, summon to an urgent hearing the victim or the legal representative of the victim, the applicant and the alleged aggressor, the latter assisted where appropriate by counsel. The public prosecutor shall likewise be summoned.

That hearing may be conducted simultaneously with the hearing provided for in Article 505 where its convening is appropriate, with the hearing regulated in Article 798 in those cases which are conducted in accordance with the procedure provided for in Title III of Book IV of this Act or, where appropriate, with the trial hearing. Where exceptionally it is not possible to hold the hearing during the duty service, the judge before whom the application was made shall convene it within the shortest possible period. In any event the hearing must be held within a maximum period of seventy two hours from the lodging of the application.

During the hearing, the duty judge shall adopt the appropriate measures in order to avoid confrontation between the alleged aggressor and the victim, the children of the victim and the remaining members of the family. To that end the judge shall order that their statements at that hearing be taken separately.

Once the hearing has been held, the duty judge shall determine by order what is appropriate as to the application for the protection order, as well as the content and the duration of the measures which it incorporates. Without prejudice thereto, the investigating judge may at any stage of the proceedings adopt the measures provided for in Article 544 bis.

5. The protection order confers upon the victim of the acts mentioned in paragraph 1 an integral status of protection which shall comprise the civil and criminal precautionary measures contemplated in this article and such other measures of social assistance and protection as are laid down in the legal order.

The protection order may be relied upon before any authority and public administration.

6. The precautionary measures of a criminal nature may consist of any of those provided for in the criminal procedural legislation. Their requirements, content and duration shall be those laid down generally in this Act. They shall be adopted by the investigating judge having regard to the need for the integral and immediate protection of the victim and, where appropriate, of the persons subject to the parental authority, guardianship, curatorship, custody or fostering of the victim.

7. The measures of a civil nature must be applied for by the victim or by the legal representative of the victim, or by the public prosecutor where there are minor children or persons whose capacity has been judicially modified, determining the regime of their compliance and, where appropriate, such complementary measures as are necessary, provided that they have not previously been ordered by a body of the civil jurisdiction, and without prejudice to the measures provided for in Article 158 of the Civil Code. Where there are minors or persons with a disability in need of special protection who cohabit with the victim and depend upon the victim, the judge must in all cases rule, even of its own motion, upon the appropriateness of the adoption of those measures.

Those measures may consist of the manner in which parental authority, fostering, guardianship, curatorship or de facto custody is to be exercised, the attribution of the use and enjoyment of the family home, the determination of the regime of custody and care, the suspension or maintenance of the regime of visits, communication and stay with the minors or persons with a disability in need of special protection, the regime of the provision of maintenance, as well as any disposition considered appropriate in order to remove them from a danger or to spare them harm.

Where a protection order is issued containing measures of a criminal content and there are well founded indications that the minor children have witnessed, suffered or lived with the violence referred to in paragraph 1 of this article, the judicial authority shall, of its own motion or at the instance of a party, suspend the regime of visits, stay, relationship or communication of the accused person in respect of the minors who depend upon that person. Nevertheless, at the instance of a party, the judicial authority may decline to order the suspension by a decision reasoned upon the paramount interest of the minor and after an assessment of the situation of the parent and child relationship.

The measures of a civil nature contained in the protection order shall have a duration of thirty days. If within that period family proceedings are commenced before the civil jurisdiction at the instance of the victim or of the legal representative of the victim, the measures adopted shall remain in force during the thirty days following the lodging of the claim. Within that term the measures must be ratified, modified or set aside by the court of first instance which has jurisdiction.

8. The protection order shall be notified to the parties, and communicated by the court clerk immediately, by a complete certified copy, to the victim and to the public administrations competent for the adoption of measures of protection, whether of security or of social, legal, health, psychological or any other kind of assistance. To that end an integrated system of administrative coordination shall be established by regulation in order to guarantee the promptness of those communications.

9. The protection order shall entail the duty to keep the victim permanently informed as to the procedural situation of the investigated or accused person and as to the scope and duration of the precautionary measures adopted. In particular, the victim shall be informed at all times of the prison situation of the alleged aggressor. To that end the prison administration shall be notified of the protection order.

10. The protection order shall be entered in the Central Register for the Protection of Victims of Domestic and Gender Violence.

11. In those cases in which, during the conduct of criminal proceedings which are under way, a situation of risk arises for any of the persons connected with the investigated or accused person by any of the relationships indicated in paragraph 1 of this article, the judge or court hearing the case may order the protection order of the victim in accordance with the provisions of the preceding paragraphs.

Working translation prepared by Société Juridique from the consolidated Spanish text published by the Official State Gazette. It has no official status: the only authoritative version is the Spanish original, available at the Official State Gazette and reproduced verbatim in our Spanish-language entry for this provision. Source: Royal Decree of 14 September 1882 approving the Spanish Criminal Procedure Act.