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How to request a restraining order for partner abuse

Criminal Law
How to request a restraining order for partner abuse

Partner abuse is a type of violence between people in the same couple. In Spain, the most common abuse is gender violence, although there are also other types of abuse, such as domestic violence.

Gender violence is a type of sexist violence that occurs due to abuse in the couple through violent actions directed at one of the people who are part of the couple, or who previously had a relationship, and who the main victim who suffers abuse is the woman. It could also occur in those cases in which the victim of violence is a minor, and the abuser has direct ties to the minor victim.

When a woman is a victim of gender violence, it is necessary for her to have protective measures to prevent it from happening again, and to protect her from the aggressor. One of the best-known protection measures, and the one that has the greatest effects to protect women who have been victims of abuse, is the restraining order.

In this article you will obtain information about the restraining order, how to report the gender violence suffered and request a restraining order, and alternative protection measures to protect the interests of the abused woman.

What is a restraining order? 

This is a protection measure for victims of abuse, as established in art. 544 bis LECrim, and consists of the protection granted to a woman who has been a victim of gender violence, prohibiting the abuser from approaching the abused woman, at a certain distance, which will be calculated in meters or kilometers as established by the Competent Court of Violence against Women, or the Court of Duty. 

Now, it is important that victims know how to request a restraining order for partner abuse. Next, we will explain how to ensure that this protection and security measure is implemented

In the restraining order contained in art 544 bis of the LECrim, only criminal measures will be established for those people who have allegedly committed any of the crimes mentioned in article 57 of the penal code. One of the measures that can be agreed upon based on the appearance held based on that article is precisely the restraining order. This appearance will be held after the mandatory complaint accompanied by a lawyer who is an expert in partner abuse and it is not necessary for the alleged aggressor to attend. The criminal protection measure can be adopted without the aggressor being present.

If the precautionary measure imposed is violated, that is, the aggressor fails to comply with the agreed protection measure, it can be toughened, calling for a new appearance and the Prosecutor's Office or the victim's private prosecution lawyer may request harsher measures and restrictive for the personal situation, including provisional detention.

The protection order of article 544 ter of the LECrim was designed for victims of gender violence. The beneficiary of this measure will always be a woman. At the hearing scheduled for adoption, both the alleged victim, with his or her lawyer, and the alleged aggressor must be present.

How to request a restraining order for partner abuse?

For a judge to grant this protection measure, he or she will assess whether it is necessary based on the risk and danger that being close to the aggressor may entail for the victim of intimate partner abuse. 

If you have been a victim of gender violence, it is highly recommended that you be assisted by a partner abuse lawyer, so that you can request a restraining order as soon as possible, and the necessary protective measures to protect the abused victim.

What are the steps to follow to request a restraining order?

The first thing of all is to file a complaint with the police or a complaint before the Violence Against Women Courts. Being in this same process, it is advisable to have the assistance of a lawyer, so that he can advise you at all times, and obtain better results in the processing of both the protection order and the possible criminal procedure to stop the abuse of the victim.

It will be necessary for the affected person to have evidence that corroborates the abuse suffered by their partner, which may be photographs, witnesses, recordings, WhatsApp messages, emails, etc. 

Later, and as its processing is urgent, the commission of the possible crime of gender violence will be investigated.

After the victim's statement at the police headquarters and in the competent Courts, accompanied by her lawyer, the hearing process will be carried out to resolve the request for a restraining order. After this, the Court will issue an Order based on the evidence and statements made, to rule on whether or not to issue a restraining order or the necessary protective measures to protect the victim.

Finally, the restraining order will be notified to the accused, regarding the agreed protection measure. 

The length of a restraining order will vary depending on the severity of the case and depending on the circumstances of the victim and the aggressor.

How long does it take to get a restraining order?

The time it takes to obtain said protection measure will depend on different circumstances, whether the complexity of the matter, the urgency of the procedure or the delay of the Court itself.

As a general rule, the Court will rule on the order as soon as possible, this being a matter of utmost urgency, to guarantee that the victim of intimate partner abuse is not in any danger or any type of risk.

What evidence is necessary to obtain a restraining order? 

It will be important to provide everything that the victim has at their disposal, such as WhatsApp messages, Instagram, emails, recordings, audios, witnesses who have witnessed a situation of abuse in the couple, incriminating photographs, etc.

Furthermore, both the police and the Court itself will be in charge of carrying out the investigation to obtain as much evidence as necessary of partner abuse. For example, they are in charge of reviewing the criminal record of the aggressor, the complaints that have been previously filed against him, the previous criminal proceedings, etc. 

You can also provide a list of calls or conversations between the alleged aggressor and the victim who has suffered abuse.

The more evidence there is of partner abuse, the easier it will be for both the Court and the competent Judge to approve the request for a restraining order, and the criminal procedure to continue its course regarding the possible abuse of the victim.

What are the consequences of not complying with a restraining order? 

The restraining order is mandatory, whether it is a penalty or a precautionary measure. Therefore, failure to comply with said measure will result in a crime for the aggressor for breach of sentence, as typified in article 468 of the Penal Code. 

Therefore, failure to comply with this measure will result in a fine ranging between 12 and 24 months.

Now, if this measure is applied in exceptional situations included in article 173.2, the penalty will be imprisonment of 6 months to 1 year.

The request for a restraining order is a protective measure that offers maximum legal protection to the victim, with the main objective that the aggressor does not approach the victim up to the distance established by the judge.

To request this protection and security measure, you can go through different means. You can request it before a judge, before the prosecutor, before the Violence against Women Courts, before the Guard Courts, before the national police, etc. 

This measure provides greater peace of mind to the victim to avoid seeing the aggressor.

Contact Forcam Lawyers, and our best lawyers in cases of gender violence, experts in partner abuse, will study your specific case. We offer criminal assistance and advice on gender violence at a national and international level. In addition, we have:

Law office in Barcelona
Law office in Madrid
Law office in Reus