Article 544 bis Spanish Criminal Procedure Act: Interim Restraining and Exclusion Orders

Article 544 bis of the Criminal Procedure Act allows the court, in investigations into the offences listed in article 57 of the Criminal Code, to impose on the accused as an interim measure a prohibition on residing in or attending a given place, or on approaching or communicating with specified persons. The provision requires that the measure be reasoned and strictly necessary, and it obliges the court to weigh the economic situation, health, family circumstances and employment of the accused, with particular regard to the continuity of that employment. Breach triggers a hearing under article 505 with a view to pre-trial detention.

Wording of Article 544 bis of the Spanish Criminal Procedure Act

Requirements and procedure

1. An investigation into one of the offences listed in article 57 of the Criminal Code, which covers homicide, bodily harm, offences against liberty, torture, sexual freedom, privacy, honour and property.
2. A reasoned decision establishing that the measure is strictly necessary to protect the victim or to prevent repetition. Necessity must be established on the facts, not asserted.
3. An assessment of the economic situation, health, family circumstances and employment of the accused, with express regard to the continuity of that employment.
4. Determination of the scope: the places covered, the persons protected and the distance, all of which must be stated with precision.

Defence strategy

The proportionality assessment the article requires. The third paragraph is frequently ignored in practice, and it is the defence’s principal instrument. The court must weigh employment, health and family circumstances, and must have particular regard to the continuity of employment. Where the accused works in the municipality from which he would be excluded, where his children are schooled there or where he requires treatment at a centre within the exclusion zone, the defence produces that evidence at the hearing and proposes a measure tailored to it, such as a prohibition on approaching the person rather than on entering the municipality.

Precision of the scope. An order that does not state the distance, the persons protected or the places covered is unworkable and exposes the accused to a breach he cannot avoid. The defence asks for those terms to be specified in the decision itself, and for the position to be regulated where the parties must necessarily coincide, as at a school gate or in a shared workplace. This is also what protects the client later against a prosecution under article 468.

Absence of strict necessity. The measure requires more than the seriousness of the offence charged: it requires a present risk to the victim or of repetition. Where the events are old, where the parties have had no contact since, where the complaint arises from a property or family dispute, or where the victim herself does not seek protection, the defence contests necessity and proposes an undertaking instead.

Consequences of a breach. The fourth paragraph is what the client must understand from the outset: a breach does not merely generate a new charge, it opens a hearing that may end in pre-trial detention. The rule applies irrespective of the protected person’s consent, so resumed contact at her invitation is the most common route to custody in this class of case. Where the parties wish to resume contact, the only lawful course is an application to vary the measure.

• Article 505: the custody hearing
• Article 468: breach of a restraining order
• Domestic and gender violence: defence service
• 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.