Breach of a restraining order in Alicante

Breach of a restraining order raises many questions, both for the person subject to the ban and for the person it protects. We explain what the law says, what penalties apply, how a case like this is defended and what the victim can do if the order is not respected.

What breaching a restraining order means

A “restraining order” (orden de alejamiento) is, in legal terms, a ban on approaching a person and, often, also on communicating with them. Article 48 of the Criminal Code defines it: the ban on approaching prevents the person from going near the protected person “wherever they may be”, as well as their home, workplace and other places they frequent. The ban on communicating prevents contact “by any means of communication or by computer or electronic means”, whether in writing, verbally or visually.

Breaching it means failing to comply with any of those bans while they are in force, even if there is no violence or threat.

Interim measure or sentence: the difference matters

• Interim measure: ordered by the court during the proceedings, before trial, usually as part of a protection order in gender violence cases (art. 544 ter LECrim) or as a measure under art. 544 bis LECrim. It is provisional.
• Sentence: imposed by a conviction. For offences committed against a partner or former partner and other relatives under art. 173.2, the ban on approaching is imposed “in all cases” (art. 57.2 CP), for the period set in the judgment.

For the purposes of the offence of breach, article 468.2 treats both situations the same: breaching the sentence and breaching an interim measure of the same kind are both punishable by imprisonment. What does change is how the order can be lifted: we explain this in how to lift a restraining order.

What is the penalty for breach

Article 468 of the Criminal Code distinguishes three situations:

In gender violence cases the usual situation is that of 468.2: the protected person is the wife, former partner or a woman with whom there was an intimate relationship, even without living together. “In all cases” means that a fine cannot be imposed instead of prison.

On electronic monitoring devices, see our guide to anti-abuse tags.

WhatsApp messages and social media

Where the order includes a ban on communication, any contact by WhatsApp, text message, call, email, social media or through a fake profile may be a breach. Article 48.3 CP refers to “written, verbal or visual” contact by any means.

If the order only bans approaching and not communicating, sending a message does not breach that specific measure, although depending on its content it could amount to other offences. That is why the court order or judgment must be read carefully.

Other consequences: arrest and remand in custody

• Arrest: if it happens there and then, the police may arrest the person and bring them before the duty court. Where the offence is caught in the act, it may be dealt with as a fast-track gender violence trial (art. 795.1.1.ª LECrim).
• Tougher measures: article 544 bis LECrim provides that, if the interim measure is breached, the court will call the hearing under art. 505 to consider remand in custody, a protection order or another more restrictive measure, taking into account the impact of the breach, its reasons, its seriousness and its circumstances.
• Remand in custody: article 503.1.3.º c) LECrim allows it to be ordered to prevent the suspect from acting against the victim’s legal interests, without the general two-year sentence threshold where the victim is one of the persons in art. 173.2 CP.

How a breach allegation is defended

Knowledge of the measure

Breach is an intentional offence. According to Supreme Court case law (for example, STS 567/2020 of 30 October), intent requires knowing about the court order and knowing that one’s own conduct breaches it. A formal warning of criminal liability is not required, but the person must have been served with the order. The questions are whether service was valid, exactly what the order prohibited and whether it was in force.

Intent and chance encounters

Bumping into someone by chance in a supermarket or in the street is not the same as seeking them out. What matters is what happens next: someone who walks away immediately in a chance encounter is not breaching the order voluntarily. The defence works with objective data: times, locations, witnesses or records from the device.

Proof of distance and contact

It must be proven that the set distance was exceeded or that contact took place and came from the accused: who actually controls the account or number, and how reliable the measurements and witness statements are.

Initiative of the protected person

Although consent does not rule out the offence, the Supreme Court has accepted on an exceptional basis (STS 803/2015 of 9 December) that there may be no liability where the approach results from a clear initiative of the protected person that is hard to avoid, and the accused remains passive.

If you have been accused, our area of defence of men accused of domestic or gender violence reviews these issues from the very start, always on the basis of the presumption of innocence.

If you are the victim: how to document and report it

If the order is not being respected, these steps help to prove the breach:

1. If you are in danger, ask the police or the emergency services for help, and then message us on WhatsApp at 607 449 491 (24 hours): we accompany you throughout the process. Your safety comes first.
2. Keep the evidence: screenshots with the date, time and number or profile visible; call logs; voice notes; emails. Do not delete conversations.
3. Write down each incident: date, time, place, what happened and who witnessed it.
4. Report it at a police station, a Guardia Civil post or directly at the court, giving the number of the proceedings in which the order was made.
5. If you carry a device, report any alarm or incident in line with the instructions you were given.

You can have a lawyer represent you as private prosecutor (acusación particular): in our area of representing women who are victims of gender violence we help you request more effective measures when the current ones are not enough. More information on how they work in restraining orders in gender violence cases.

We help you whichever side you are on

Breach of a restraining order in Alicante

Since the reform introduced by Organic Act 1/2025, the former gender violence courts have been merged into the Court of First Instance (Tribunal de Instancia). The investigation of the offence of breach falls to the Gender Violence Section (Sección de Violencia sobre la Mujer) where the protected person is or was the wife or partner of the accused, or one of the relatives listed in art. 89.5 g) of the Judiciary Act (Ley Orgánica del Poder Judicial).

In the Alicante judicial district, the Gender Violence Section of the Court of First Instance, with four judges, is located at Avenida Aguilera, 53 (03007 Alicante), according to the Generalitat Valenciana’s online portal. In Torrevieja, the corresponding Section is at Calle Patricio Zammit, 50.

Celeste Pérez Bleda, member no. 7301 of the Alicante Bar Association (ICALI), has more than 20 years’ experience in criminal law and has assisted more than 800 detainees. We act for women who need the order to be enforced and for men accused of breaching it, in separate cases and with the same rigour.

Every case is different. If you would like a lawyer specialising in gender violence in Alicante to look at yours, get in touch: we reply the same day and can assist you in your own language.