Your Local Legal Magazine
Page 8 The Restraining Order
Female Focus by Ana Gay
A restraining order, regulated in article 48 of the Criminal Code, is an order of prohibition of approximation or communication with the victim or the victim’s family members, issued by a Judge.
This imposed restriction of rights restricts the aggressor’s freedom of movement so that the victim is protected against such crimes, amongst others, as homicide, abortion, injuries, crimes against their freedom, torture and against their moral integrity, and sexual crimes, etc.
This order prevents the aggressor from being in the same place as the victim, and prohibits the approximation within a certain distance of the victim, established by a Judge. The aggressor cannot go to the victim’s home, work place or any places that the victim habitually frequents. Aside from physical interaction with the victim, this prohibition extends to communication: they may not speak face to face, via the telephone (land line or mobile), they cannot send messages via third parties, neither can they contact the victim via messages on social
networking sites, or email, this includes Whatsapp also.
It must be a Judge who determines the extension of the order, in accordance with each particular case. The main requirement to apply for an order is that the victim issues a complaint before the Guardia Civil, this is then passed onto a Judge, who will establish whether the order is necessary. When the order is imposed as part of a Judgment, the Criminal Code states that it is an extension of the main sentence and punishment, such as a fine, or community service.
Infringement of the Order This order is obligatory, and the aggressor infringes this order every time he gets closer than the established minimum distance or communicates with the victim.
Here, we must also point out that, the intention or not of breaking this order is irrelevant. Only fortuitous meetings will not be considered a violation of the order.
Breaking the order is punishable with six months to one year’s imprisonment or a fine, at the discretion of the Judge, according to article 468 of the Criminal Code.
The aggressor and victim may be issued equipment that will notify the victim of the aggressor’s proximity. In this case, should the aggressor tamper with the equipment, a sentence of 6 months imprisonment will be imposed upon them.
The order can only be withdrawn by a Judge, and therefore this withdrawal should be applied for through the courts. The Judge will evaluate the circumstances in order to determine whether the order should be withdrawn or not.
Should you have questions on this matter or nay other legal or tax matters, please do not hesitate to contact us on 96 626 0500 or email:-
anagay@linkpointlegal.com.
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