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abogado penalista en Madrid

ATTORNEY FOR PROTECTION AND RESTRAINING ORDERS IN MADRID

Specialized criminal defense for protection orders and restraining orders in Madrid. We represent both victims who need immediate protection and defendants facing precautionary measures with serious criminal and civil consequences.

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abogado orden de protección Madrid

Protection orders and restraining orders: what they are and how they affect your life

The protection order is the most comprehensive legal instrument provided for in Law 27/2003 and in art. 544 ter of the LECrim. It is not limited to physically distancing the aggressor: it integrates in a single court order criminal, civil and assistance measures that immediately affect the entire family.

Key difference: protection order vs. restraining order

The confusion between both figures is common. The restraining order is a specific measure —prohibition from approaching a person, place or residence— that can be imposed as a precautionary measure within criminal proceedings or as a final accessory penalty in judgment (art. 48 CP). The protection order is a comprehensive instrument that encompasses this and other measures simultaneously, also activating the victim’s access to the network of social and assistance resources.

Gender-based violence vs. domestic violence

The type of violence determines the competent court and applicable measures. Gender-based violence (art. 87 ter LOPJ and concordant provisions) requires that the perpetrator be male and the victim female with a present or past romantic relationship. Domestic violence encompasses any cohabitant or family member, regardless of sex, pursuant to art. 173.2 CP. Both categories may give rise to a protection order, but the deadlines, competent bodies and remedies differ.

When is urgent action required—for the accused or for the victim?

The protection order is processed in an urgent hearing that must be held within a maximum of 72 hours from the request (art. 544 ter LECrim). That deadline admits no delay: if you don’t have an attorney when you are summoned, you appear at an absolute disadvantage.
  • If you are the victim: requesting the order as soon as possible activates police protection, urgent civil measures (child custody, use of the home) and your access to the social assistance system
  • If you are the accused: you need legal defense before the hearing to present your version, combat insufficient evidence and avoid disproportionate precautionary measures
  • You have received a hearing notification under art. 544 ter LECrim
  • An order already exists and problems of violation (voluntary or consented) have arisen
  • You want to request the lifting or modification of existing measures
  • Civil measures (custody, support, use of the home) affect minors or your family assets
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How the protection order is processed: art. 544 ter LECrim step by step

The procedure is extremely fast and every hour counts:
  1. Request or complaint: it may be filed by the victim, the Public Prosecutor’s Office, assistance entities or any person who has knowledge of the facts, including ex officio by the Security Forces and Corps.
  2. Urgent notification to the duty court: the injury report or police report is sent immediately. The court has the file within a few hours.
  3. Hearing within 72 hours: victim, subject under investigation and their respective attorneys appear. The judge hears both parties and may adopt precautionary measures in the same proceeding.
  4. Protection order ruling: if evidence of crime and objective risk situation is found, issues the ruling with criminal and civil measures. It is notified to the CGPJ for registration in the Central Registry.
  5. Duration of civil measures: thirty calendar days, extendable for another thirty if family proceedings have been initiated. Criminal measures remain throughout the investigation.
The detainee who does not have legal assistance at that hearing loses the only immediate opportunity to refute the evidence before the judge.
El delito de quebrantamiento de orden de alejamiento es un delito que se comete en el ambito de violencia de género

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PROTECTION ORDER MEASURES

The protection order integrates up to six types of measures. Knowing each one is essential to defend yourself or to demand complete protection.

Restraining order

Prohibition from approaching the victim, their home, workplace or any place they frequent. The distance and duration are set by the judge in the ruling (art. 544 bis LECrim and art. 48 CP).

Communication prohibition

Prohibits all direct or indirect contact: calls, messages, emails, social networks or any third-party intermediary. Its breach constitutes violation.

Civil measures

The same court order may include: assignment of use of the home, custody of minors, visitation rights, and child support. Valid for 30 days, extendable until the civil court renders a decision.

Violation of court order

Non-compliance with the order is an autonomous crime punishable by 6 months to 1 year imprisonment (art. 468 CP), even if the victim consents to contact. Majority jurisprudence does not exempt the convicted party.

Gender-based violence

When the victim is a woman and the aggressor is her partner or ex-partner, jurisdiction corresponds to the Violence Against Women Court. The protective measures are identical but the procedure and public prosecution are reinforced.

Electronic monitoring

In higher risk cases, the judge may order control through GPS devices or electronic ankle bracelets to verify compliance with the restraining distance in real time.
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DEFENSE STRATEGIES AND LEGAL ACTION

CHALLENGE FOR LACK OF EVIDENCE
A protection order requires two simultaneous prerequisites: founded evidence of the commission of a crime and an objective situation of risk for the victim. If either fails, the order cannot be granted. We analyze the police report, the medical report, statements and any evidence to detect contradictions, absence of witnesses or expert reports that weaken the charges before the hearing.
DEFENSE IN ARTICLE 544 TER HEARING
The Article 544 ter hearing is brief but decisive. The attorney’s appearance allows presenting exculpatory documentation, questioning the victim about relevant circumstances and requesting that measures be proportional to the actual risk. Professional action at this moment can drastically reduce the restraining distance, avoid expulsion from the home or preserve contact with minor children.
APPEAL AGAINST PROTECTION ORDER
The court order granting the protection order is appealable through motion for reconsideration and appeal. The deadline is brief, so it is advisable to act quickly. If it was granted without prior hearing or the evidence is insufficient, the appeal to the Provincial Court can suspend the precautionary measures during the criminal proceedings. It is also possible to request review if circumstances change.
VIOLATION CONSENTED BY THE VICTIM
A common mistake: the victim resumes contact and the convicted person accepts. Article 468 of the Criminal Code punishes violation even if the victim has consented. The Supreme Court jurisprudence is predominantly against exemption, although there is doctrinal debate. The defense must document the context of the contact, explore possible judicial modification of the measure and act before a violation complaint is filed.
REQUEST FOR LIFTING THE ORDER
If circumstances have changed —documented reconciliation, family mediation, proven absence of risk— it is possible to request the court for lifting or modification of the measures. To succeed, it is essential to present sufficient evidence: psychological reports, proof of voluntary separation, absence of prior violations and, where applicable, victim ratification before the court. Without a well-founded strategy, the court usually denies these requests.
CIVIL REMEDIES AS STRATEGY
The civil measures granted in the protection order —custody, use of the family home, visitation regime, child support— have immediate effects and may condition the outcome of the subsequent family proceedings. It is essential to anticipate: an active defense in the Article 544 ter hearing can preserve the right to reside in the home or guarantee supervised visitation instead of total suspension of contact with children.

FREQUENTLY ASKED QUESTIONS ABOUT PROTECTION ORDERS

These are the most common questions asked by both victims and accused parties before the hearing. Each case has its particularities: what we address here are general criteria, not individualized legal advice.

  • Legal assistance from the first moment

  • Analysis of all evidence before the hearing

  • Preparation of cross-examination and documentary evidence

  • Management of civil measures to protect minors

How long does it take for the judge to rule on the protection order?

Art. 544 ter LECrim requires the hearing to be held within a maximum period of 72 hours from when the petition reaches the duty court. In practice, in Madrid the courts usually schedule the hearing within 24-48 hours. Once held, the judge may issue the court order immediately or in the following hours. If restraining orders are agreed upon, they are immediately enforceable.

Can a protection order be issued without a conviction?

Yes. The protection order is a precautionary measure, not a penalty. It is adopted during the investigation phase, when there is no final judgment yet. Full proof of guilt is not required, only well-founded evidence of the commission of a crime and objective risk to the victim. This is why defense from the initial hearing is so important: the judge rules with limited information and in little time.

What happens if the victim wants to withdraw the complaint or the order?

In domestic violence crimes, the criminal action is public: the Public Prosecutor’s Office can maintain the prosecution even if the victim withdraws their complaint or invokes the exemption of art. 416 LECrim. The victim may request the court to lift civil measures, but cannot unilaterally nullify criminal measures. The court will assess the actual risk regardless of the victim’s wishes.

What are the consequences of violating the order?

Violation of a protection order or restraining order is classified under art. 468 CP with a sentence of 6 months to 1 year imprisonment. If the violator is the person convicted in a domestic or gender violence case, the minimum sentence increases to 1 year. The crime is committed even if the contact is by phone, messages or through third parties, and even if the victim herself prompted it.

What is the difference between a protection order and a restraining order?

The restraining order is a specific measure: prohibition from approaching a person, place or residence within a determined distance, and/or prohibition from communicating with them. The protection order is a comprehensive instrument that includes this and other measures (criminal, civil and assistance) in a single court order, while also activating the victim’s access to social services and the comprehensive protection system. A restraining order can exist without a protection order —as an accessory penalty in a final judgment— but a protection order always includes some form of restraining measure.

Why legal defense is decisive in these 72 hours

The procedure under article 544 ter LECrim compresses into less than three days a judicial decision with consequences that may last years: eviction from the home, loss of cohabitation with children, records in the Central Registry of Protective Measures. Emergency courts work under time pressure; an experienced attorney knows what documentation to present, what questions to ask, and how to counter a unilateral statement before the judge issues the court order.
At Víctor Ávila’s law firm, we handle the defense of the accused and assistance to the victim with equal rigor. We know the patterns of Madrid courts, the criteria of the Provincial Court, and the limits of what Supreme Court jurisprudence considers sufficient objective risk to order protective measures. That practical experience is what makes the difference between an order that destroys a family and a resolution proportionate to the facts.

For the accused

Appearing without an attorney at the 544 ter hearing means the judge will only hear one side. Assisting you from the first moment allows us to neutralize weak evidence, avoid disproportionate protective measures, and establish from the beginning a coherent strategy with the criminal procedure that will follow.

For the victim

Correctly requesting the protection order, documenting the facts so the court can assess the real risk, and simultaneously activating civil measures that protect your children and your home requires legal assistance that looks out exclusively for your interests. We accompany you at every step of the procedure, from filing the complaint to executing the ordered measures.

If you are facing an urgent hearing for a protection order or need to request one immediately, contact our criminal law firm in Madrid. We will assess the risk indicators and design a tailored legal strategy for the 72-hour hearing.

Request a consultation with a restraining order attorney in Madrid

We will study the complaint and tell you exactly what you are facing.

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