Restraining order for a minor offence

Restraining orders for minor offences are legal measures designed to protect a victim from approaching or coming into contact with the offender. Their aim is to prevent future assaults, i.e. an escalation of the conflict, and thus to ensure the victim's well-being. However, there are many details that need to be taken into account in this regard.

Three types of misdemeanour restraining orders

We all tend to think that all restraining orders are the same. However, this is not the case, as each one is adapted to the circumstances of the specific case. Therefore, we can distinguish three main types of restraining orders:

• No-approach order: this is the most common. Through it, the judge establishes the minimum distance that the aggressor must respect with respect to the victim. Depending on the circumstances, it will be 100, 500 or more metres.
• Exclusion order: when two people share a home and there are grounds to impose a restraining order, this can be limited exclusively to the property. It may also affect the workplace.
• Total restraining order: this is an order that prohibits any contact between the aggressor and the victim.

But how long does a restraining order for a minor offence last? This depends on the risk that the judge considers at the time of issuing it. The factors that are usually taken into account are the nature of the offence, the impact that the aggression has had on the victim and the likelihood of reoffending, as well as recommendations made by professionals and the aggressor's background. However, as a general rule, it is usually between 6 and 12 months.

What types of offences can give rise to a misdemeanour restraining order?

Obviously, it must be a minor offence as defined in the Criminal Code. This would be the case, for example, of minor harassment, such as making unwanted calls or sending SMS or WhatsApp messages that are annoying for the victim.

Similarly, altercations in which the aggressor makes insults or threats that are not excessively violent, but which do generate insecurity for the victim in the future, are also considered to be harassment. Intrusions into privacy, such as monitoring or surveillance, are also good examples, as long as they do not lead to direct confrontation.

How to apply for a restraining order?

It does not matter if it is a minor offence of harassment, threats or any other of the above. The only person with the authority to impose a restraining order is a judge.

The first step in getting a restraining order for threats or any other reason is to file a complaint with the National Police, the Guardia Civil or the court. In the report, the victim must explain the facts and provide any evidence available.

After this step, the officers or the prosecutor will make a preliminary assessment of the complaint and determine whether there is sufficient evidence to continue the procedure, in which case they will make a formal request to the court. Subsequently, both parties will be summoned to a court hearing where they can present their arguments.

Based on this, the judge will determine whether to issue a restraining order for harassment or whatever reason. He or she will specify the duration of the order and its specific conditions.

What are the requirements for a misdemeanour restraining order?

The same as for any other type of restraining order. The judge will have to base his or her decision on three pillars: that there is sufficient evidence, that there is a credible risk to the victim and that the measure is proportionate to the seriousness of the offence committed and the perceived level of risk.

What happens if the restraining order is breached?

It depends on the case, as it all depends on the intention of the aggressor. It cannot be denied that there are chance encounters, i.e. occasions when an aggressor and his victim coincide in the same space by mere chance. However, if the aggressor decides to leave the place without trying to make contact with the victim, this is not considered a breach, as is logical.

It is a different matter if the offender does attempt to interact or if the offender intentionally and knowingly breaches the judge's order. This can be done through a physical approach or, alternatively, by undertaking an attempt to communicate by telephone or digitally.

In this type of situation, law enforcement agencies have the power to arrest and detain the aggressor and subsequently bring him or her before a judge. In these cases, the judge can impose fines and even prison sentences to ensure the protection of the victim. The judge also has the power to impose stricter conditions than the original restraining order.

In any case, in order for both parties to have full guarantees that their rights will be respected throughout the judicial process, the services of a criminal lawyer are essential. If you need one, do not hesitate to contact us. We will be happy to help you in any way we can.

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