Imagine you’ve just left the courthouse after filing a complaint for assault and are suddenly overcome with doubts about your immediate future, or that you suddenly receive a call from the court notifying you that a restraining order has been requested against you. The purpose is clear: to protect a person when a situation of risk is identified. It can be issued before a verdict is reached, as a precautionary measure, or after the trial, if there is a conviction, as an ancillary penalty. The difference is important. The precautionary measure is adopted while the case is being investigated or tried. The penalty is imposed at the end, with the final judgment, when the court considers the crime proven.
What Is a Restraining Order?
A restraining order is a legal measure that prohibits a person under investigation or convicted of a crime from coming within 500 meters of the alleged victim’s home, workplace, or any other place the victim frequents, as well as from communicating with the victim by any means or through third parties. Its primary objective is to ensure the safety of the affected person.
Legal Framework
The restraining order as an ancillary penalty is regulated in Section 3 of Chapter I within Title III of the Penal Code. Specifically, Article 39 recognizes the restraining order as a penalty involving the deprivation of rights, and Article 48 details how the restraining order works.
Timing of Imposition
Under the Penal Code, this measure can be imposed at two very different stages of the process:
- Before trial (as a precautionary measure): The judge issues it on an urgent basis at the start of the investigation if a real risk to the victim is detected, protecting the victim while the facts are being clarified.
- After the trial (as a penalty): If the defendant is found guilty, the restraining order is included in the final judgment as part of the mandatory punishment for the crime committed.
How Is a Restraining Order Processed?
When a protection order or restraining order is requested, the court must assess whether there is evidence of a crime and whether there is an objective situation of risk. A mere argument or a strained relationship is not sufficient. The judge must determine that there is a genuine need for protection, although this assessment is made at a very early stage based on the information available at that time.
How long does a restraining order last?
In a gender-based violence case, the duration of the restraining order depends on whether it is agreed upon before the trial or imposed afterward in the judgment.
Before Conviction (Precautionary Measure)
Before a conviction is handed down, the order functions as a precautionary measure. In other words, the judge issues it to protect the victim while the case is under investigation. In this case, there is no single time limit that applies to all cases: the measure lasts as long as specified in the court order and remains in effect until the judge modifies it, revokes it, or a judgment is rendered.
It does not lapse simply because the victim withdraws the complaint, because the parties resume communication, or because a reconciliation occurs. This measure is governed by Articles 544 bis and 544 ter of the Criminal Procedure Act. The former allows for a prohibition against approaching or communicating with the victim. The latter governs the protection order, which may include criminal, civil, and support measures when there is an objective situation of risk.
After Conviction (Sentence)
If a conviction is ultimately handed down, the restraining order becomes a sentence. In that case, its duration is set in the judgment in accordance with Articles 48 and 57 of the Penal Code. It can last up to ten years for serious crimes, up to five years for less serious crimes, and up to six months for minor offenses.
Validity of the Order
The main principle is simple: as long as the order is in effect, it must be complied with. Only a judge can modify or lift it. The victim’s consent, by itself, does not authorize contact or prevent the consequences of a possible violation.
What Happens if a Restraining Order Is Violated?
Violating a restraining order may constitute the crime of breach of a restraining order. The penalty can be imprisonment for six months to one year. Merely violating the prohibition can trigger new criminal proceedings.
Forms of Violation
A violation is not limited to showing up at the victim’s doorstep. It can also include:
- Sending a message
- Calling from a blocked number
- Messaging on social media
- Asking a friend to pass on a message
- Approaching the victim’s workplace
If there is a communication ban in place, any attempted contact can be a serious problem.
Chance encounters
A chance encounter is a different matter. It may happen that two people run into each other by chance on the street, at a supermarket, or in a public place. In that case, the person subject to the order must leave the area immediately.
Liability Despite Contact from the Victim
It is also important to clarify the following: even if it is the victim who writes, calls, or suggests meeting, the legal obligation rests with the person against whom the order was issued. The correct course of action is not to respond or comply, but to report it to the court.
Can a restraining order be lifted?
During the preliminary investigation (before sentencing)
A restraining order can only be lifted before the trial takes place, provided it is in effect as a precautionary measure. Yes, it can be lifted or modified, but never automatically.
The victim may request that it be withdrawn if they believe the risk has disappeared, and the defense may also request a modification when there are grounds to do so: a change in circumstances, absence of risk, work-related necessity, unavoidable encounters in certain places, or excessive duration of the order.
The court will refer the matter to the Public Prosecutor’s Office before rendering a decision. The victim’s safety will be the primary criterion. Therefore, agreement between the two parties is not sufficient. The judge may uphold the order if he or she believes that a risk still exists or if he or she considers that contact could undermine the agreed-upon protection.
After the Final Judgment
Once a final judgment has been rendered in the case, the restraining order can no longer be withdrawn under any circumstances.
Key Conclusions
A restraining order is a judicial measure of particular significance because it restricts important rights of the person against whom it is issued, especially their freedom of movement and their ability to communicate with the complainant. While it remains in effect, the person is required to comply with the court’s order: to remain at the specified distance and to refrain from contacting the complainant by any means, including through third parties.
It is important to note that:
- A restraining order is not automatically modified by the will of the parties, nor by a request to the court.
- Even if the parties reconcile, even if the victim wishes to resume contact, or even if the victim is the one to initiate it, the prohibition remains fully in effect until the judge modifies or revokes it—a process that can take months.
- Violation of the order will result in new criminal proceedings for the offense of violating a court order, as provided for in Article 468 of the Penal Code, separate from the main proceedings for gender-based violence, with a prison sentence ranging from 6 months to 1 year.
