Article 468 Spanish Criminal Code: Breach of a Sentence or Restraining Order

Article 468 of the Spanish Criminal Code punishes the breach of a sentence, a security measure, a detention or an interim measure. Its second paragraph is the one encountered most often: where the measure breached is a restraining order or a prohibition on communication imposed in proceedings in which the injured party is a family member or partner, the penalty is imprisonment of six months to one year in every case, with no alternative fine. Spanish courts apply the provision even where the protected person consented to the contact, which is the point that surprises foreign defendants most.

Wording of Article 468 of the Spanish Criminal Code

Elements of the offence

1. A penalty, security measure or interim measure that is in force, that has been validly notified to the accused and whose terms are precisely determined.
2. Conduct contrary to that measure. For a prohibition on approaching, this means coming within the distance fixed by the order; for a prohibition on communication, any contact by any means, including through third parties or social networks.
3. Intent, comprising knowledge of the measure and of its content. This is why the notification, and whether it was made with an interpreter, is examined in every case.
4. For paragraph 2, that the protected person is one of those listed in article 173.2, which covers spouses, partners, former partners, descendants, ascendants and other members of the household.

Defence strategy

Defects in the notification. The offence requires knowledge of the terms of the measure. Where the order was notified at a hearing conducted in Spanish without an interpreter, where the defendant was not given a written copy, or where the distance and the persons covered were not stated with precision, the mental element is open to serious challenge. The defence obtains the recording of the hearing at which the measure was imposed, and this argument is available with real frequency in cases involving foreign defendants.

The consent of the protected person. Spanish case law is settled that the consent of the protected person does not extinguish the offence, because the measure is imposed in the public interest and only the court may modify it. This must be explained to the client at once, since resumed cohabitation at the protected person’s invitation is the single most common route to a conviction under this article. Where the parties wish to resume contact, the correct course is an application to vary or lift the measure, and evidence that such an application was made and was pending bears materially on the sentence.

Casual and unintended encounters. Where the parties live in the same town, work in the same sector or have children at the same school, an encounter may occur without any intention to approach. The offence is not committed where the accused, on realising the situation, withdrew immediately. The defence establishes the geography, the routine of both parties and the duration of the encounter, and the recordings from the location are decisive where they exist.

Consequences for the earlier sentence. The practical gravity of a breach lies less in the new penalty than in the revocation of the suspension of the sentence originally imposed, which converts a suspended term into one to be served. The defence therefore addresses the enforcement proceedings in parallel with the new prosecution, and where the breach was formal rather than substantive it seeks the continuation of the suspension with reinforced conditions rather than its revocation.

• Domestic and gender violence: defence service
• Article 153: domestic assault
• Spanish Criminal Code by article
• Spanish-language entry

This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.