SENTENCE VIOLATION ATTORNEY IN MADRID
Criminal defense in sentence violation, restraining orders and precautionary measures. Criminal defense attorney in Madrid.
Criminal defense in the crime of sentence violation and precautionary measures
The crime of sentence violation is regulated in article 468 of the Criminal Code. It is committed when a person breaches a sentence, security measure, precautionary measure, supervision or custody imposed by the judge. It does not require violence: it is sufficient to violate the prohibition.
What types exist?
The basic type of art. 468.1 CP sanctions violation of sentence, security measure, pretrial detention, supervision or custody. The aggravated type of art. 468.2 CP applies when the violated sentence or measure derives from domestic violence or gender violence crimes, and the prison sentence is mandatory: it cannot be substituted by a fine.
What legal interest does this crime protect?
The protected legal interest is not the victim’s safety, but judicial authority and respect for court rulings. This distinction is legally relevant: the victim’s consent does not exempt from criminal liability (Supreme Court Full Court Agreement of 2008, ratified in STS 539/2014).
Types of measures that can be breached (art. 48 CP)
Article 48 CP defines the penalties susceptible to breach: prohibition of residence, restraining order (with distance in meters) and prohibition of communication (calls, messages, social networks, intermediaries). It also applies to precautionary measures ordered during investigation.
When do you need a violation of sentence attorney?
You should contact a specialized criminal defense attorney immediately if you find yourself in any of these situations:
- You have been arrested for approaching a person protected by a court order
- You sent a message or made a call despite having a communication prohibition
- You have been reported for violation of sentence or precautionary measure
- Your electronic monitoring bracelet or distance control device has been activated
- The court has initiated proceedings to revoke the suspension of your sentence
- You are charged with a continuing offense for multiple violations (art. 74 CP)
Violation of sentence has direct consequences: new criminal case, revocation of sentence suspension, aggravation of procedural situation. Every hour without legal defense counts.
Penalties for violation of sentence according to the Criminal Code article
Penalties vary depending on the type of measure violated and whether violence occurs:
- Art. 468.1 CP — Basic type: Violation of sentence, security measure, pretrial detention, transport or custody: imprisonment from 6 months to 1 year or fine of 12 to 24 months. The judge may choose between both.
- Art. 468.2 CP — Aggravated type (DV / domestic violence): When the penalty or measure violated stems from a domestic violence or gender violence crime: mandatory imprisonment from 6 months to 1 year. Fine is not possible.
- Art. 469 CP — Violence during violation: If violence or intimidation is used when violating the measure, the penalty is imposed in higher degree.
- Arts. 470-471 CP — Facilitation by third party or official: Anyone who facilitates the violation also incurs criminal liability. Art. 471 CP aggravates the penalty when the facilitator is an authority or public official.
- Art. 74 CP — Continuing offense: Multiple violations may be classified as a continuing offense, which raises the minimum applicable penalty. The defense must challenge this classification and individualize each act.
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Types of violations we handle
We defend individuals under investigation and defendants in all types of proceedings for violation of sentence and precautionary measures in Madrid.
Restraining order
Approaching the victim or their home in violation of the judicially established distance. Art. 468 CP.
Communication prohibition
Phone calls, text messages, WhatsApp, email or contact through third parties. STS 650/2019.
Gender violence
Violation of measures in context of DV: mandatory imprisonment without possibility of fine. Art. 468.2 CP.
Continued Offense
Multiple violations that the prosecution seeks to unify under art. 74 CP to increase the penalty.
Electronic Monitoring Device
Activation of GPS bracelet or distance control system. Challenging geolocation evidence.
Third-Party Facilitation
Family member, friend, or intermediary who facilitates contact. Arts. 470-471 CP.
Defense Strategies for Breach of Sentence
LACK OF INTENT: ACCIDENTAL ENCOUNTER
If the encounter was accidental and involuntary, and the defendant immediately left upon becoming aware of the proximity, the subjective element of the offense is not met. The crime requires intent: knowledge and willingness to violate the protective order.
The burden of proof lies with the prosecution. Our defense works to establish the accidental nature of the encounter through witnesses, recordings, or the actual spatial-temporal sequence of events.
MISTAKE OF LAW
A mistake of law (art. 14.3 CP) occurs when the accused was unaware of the exact scope of the protective order: the specific distance in meters, the prohibited means of communication, or whether the restriction also applied to the workplace.
If the mistake is unavoidable, it excludes criminal liability. If it is avoidable, it mitigates the sentence. This defense strategy is particularly relevant when the court order imposing the measure does not detail its content with precision.
CHALLENGING THE EVIDENCE
The most common evidence in these proceedings includes screenshots, call logs, device geolocation data, and victim testimony.
Our defense challenges the chain of custody of screenshots, the technical reliability of GPS (margin of error, obstructions, system failures), and the internal consistency of the complainant’s statement. Supreme Court ruling STS 691/2018 establishes specific criteria on how distance should be measured and tolerance margins.
STATE OF NECESSITY
A state of necessity (art. 20.5 CP) may justify the violation when there was an urgent situation that could not be resolved by other means: minor children in danger, medical emergency, or need to process essential documentation.
This defense requires that the harm caused (violation) be less than what was intended to be avoided, and that there was no other alternative. The defense must meticulously document the circumstances that created the emergency.
CHALLENGING CONTINUING OFFENSE
When the prosecution seeks to apply art. 74 CP to enhance the sentence based on several alleged violations, the defense must individualize each incident, analyze whether there truly was unity of plan or criminal resolution, and question whether each act has sufficient substance to constitute the criminal offense.
A single criminal plan is not always provable. Breaking it down into isolated incidents can significantly reduce the penalty.
DISTANCE MEASUREMENT (STS 691/2018)
Supreme Court ruling STS 691/2018 establishes that restraining distance is measured in a straight line between the bodies of the persons, not between residences or by road route. GPS devices have margins of error that can range between 5 and 50 meters depending on conditions.
The defense can establish through technical report that the actual distance was equal to or greater than that required, especially in urban environments with buildings, or that the system recorded an inaccurate position due to interference.
Frequently Asked Questions About Breach of Sentence
If you have doubts about your legal situation, consult with a criminal defense attorney specializing in breach of sentence before taking action. The consequences of an error can be severe.
Breach of sentence is one of the crimes where judicial reaction can be immediate: arrest, imprisonment, and opening of new criminal proceedings within hours.
We analyze your case, study the court order that imposes the measure, and build the defense strategy from the first moment.
Can the victim authorize contact so there is no crime?
No. The victim’s consent does not exempt from criminal liability. The legal interest protected by art. 468 CP is judicial authority, not the victim’s safety. Even if the victim invites contact, the crime is still committed. This was established by the Supreme Court Plenary Agreement of November 25, 2008, ratified in STS 539/2014. Responding to the victim’s invitation is not a justifying cause.
Is a missed call or an unanswered message a violation?
Yes. STS 650/2019 expressly declared that a missed call or text message, even if unanswered, constitutes breach of the no-contact order. The crime is consummated with the attempt to make contact, not with effective reception. This includes WhatsApp messages, emails, and contact through third parties.
What penalty applies if I am already serving a sentence?
If you commit the crime of violation while already serving a sentence, two consequences arise: first, a new autonomous criminal case under art. 468 CP; second, if the conviction was suspended or under conditional release, the judge may revoke said benefit and order immediate imprisonment to serve the remainder of the pending sentence. Both consequences are independent and cumulative.
Is there a difference between violating a precautionary measure and a final sentence?
Legally, art. 468.1 CP treats both situations equally: violation of a precautionary measure (pretrial detention, no-contact order issued during investigation) has the same criminal treatment as violation of a sentence imposed in a final judgment. The practical difference lies in the procedural moment and that, if there is a suspended sentence, the violation also triggers revocation of the suspension.
Is an accidental encounter on the street a violation crime?
Not necessarily. If the encounter was accidental, unforeseen and the defendant immediately moved away upon noticing the presence of the protected person, the intentional element of the criminal offense is lacking. The crime of violation requires intent to breach the measure. However, the burden of proving the accidental nature falls on the defense, and it is essential to document the sequence of events as soon as possible. Never wait: act immediately and call your attorney.
Why Choose an Attorney Specializing in Breach of Sentence
Breach of sentence proceedings require immediate defensive action. A simple phone call, WhatsApp message, or chance encounter on the street can trigger your arrest, revocation of a suspended sentence, and direct imprisonment. An attorney without specific experience in these situations can make irreparable mistakes in your first statement.
At our firm, defending against violations of restraining orders and sentences is a priority. We have thorough knowledge of Supreme Court jurisprudence on the absence of intent in casual encounters, challenging electronic monitoring devices (GPS bracelets), and the limits of continued offenses. We act from the first minute to protect your freedom.
If you face arrest for breach of sentence or restraining order, contact our law firm in Madrid. We will evaluate the evidence against you and design a customized defense strategy.
Request a Consultation with a Specialized Criminal Defense Attorney
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