In a previous post, we briefly explained what gender- based violence is and what are some of the measures adopted by the public authorities to help prevent it.
More concretely, we referred to some Articles present in the L.O 1/2004, 28th of December, which contain certain measures to help fight gender- based violence in the “educational field”.
Before we move on, we must recall that gender- based violence occurs when a manifestation of discrimination and/or inequality is exercised against women by those who are or have been their spouses or by those who are or have been linked to them by similar relationships of affection, even without cohabitation, according to Article 1 L.O 1/2004, 28th December.
Such manifestation of discrimination may take place in the form of psychological harm or physical injury.
In line with what precedes, Article 153 Código Penal, Ley Orgánica 10/1995, 23rd of November, states the following regarding gender- based violence:
Article 153.
- Anyone who, by any means or procedure, causes another person psychological harm or injury of lesser gravity than those provided for in section 2 of article 147, or beats or mistreats another person without causing injury, when the offended party is or has been a wife, or a woman who is or has been linked to him by an analogous relationship of affection even without cohabitation, or a particularly vulnerable person who lives with the perpetrator, shall be punished by imprisonment (…).
From the criminal point of view, you must know that If you are suffering gender- based violence, you can request a restriction order from your spouse or from the male person you are or have been linked to by similar relationship of affection (even if you did not live together). Such a restriction order can be requested at the Police Office or at the Criminal Court, keeping in mind that it will be the Juzgado de Violencia sobre la Mujer located in the victim’
But certainly, a restriction order is not granted just because it is requested, rather, some legal requirements must be met.
In this regard, Article 544 Ter 1 Spanish Criminal Act contains the requirements that must be met in order for a restriction order to be granted.
Article 544 Ter 1 Spanish Criminal Act, states the following:
The Examining Magistrate shall issue a restriction order for victims of domestic violence in cases where, there being well-founded indications of the commission of a crime or misdemeanour against the life, physical or moral integrity, sexual freedom, liberty or safety of any of the persons mentioned in article 173.2 of the Criminal Code, there is an objective situation of risk for the victim that requires the adoption of any of the protection measures regulated in this article.
Thus, for a restriction order (or a protection order), there must be:
(1): well-founded indications of the commission of a crime, and
(2): objective situation of risk.
We must highlight that a restriction order is granted (or not) after a hearing that must take place within the following 72 hours after the criminal complaint has been filed.
If the male person from whom a restriction order is requested is not present, then the above- mentioned hearing will be carried out according to Article 544 Bis Spanish Criminal Act (instead of Article 544 Ter Spanish Criminal Act).
During the hearing, the Attorneys at Law will also be able to request the adoption of civil measures regarding children under legal age (visits, custody…), use and enjoyment of the marital home (among others), should it be the case.
Going back to the legal requirements for a “restriction order” to be granted, how do Courts apply Article 544 Ter Spanish Criminal Act?
At his point we can refer to a recent ruling handed down by the Audiencia Provincial de Madrid in a case in which a restriction order was not grated:
THIRD.- For this Court, the adoption of the restraining order is not sufficiently justified.
The facts of this case refer to an alleged assault committed by the appellant’s partner, which occurred on 14th November 2015 when, after returning from dinner they argued over a mobile phone which he had allegedly taken from her. However, it should be emphasized that both the appellant and the respondent also sustained injuries. Moreover, their versions of the facts are contradictory, as both of them claim to have been assaulted by the other and deny having caused the injuries to the other.
The Court of Violence, in view of this background, doubted that there was an objective situation of risk and an objective situation of risk and this assessment, which is reasonable, must be confirmed in this appeal, bearing in mind that the complainant and the defendant maintain different addresses and have no need to communicate with each other. It should also be added that the episode complained of is an isolated event, as no evidence of other aggressive episodes has been presented, and that the versions given by the complainant and the defendant are contradictory and are not compatible with the injuries they both present. The case does not show any criminal record for acts related to gender violence. Nor is there any police record or previous complaints of any kind. The fact that the respondent himself shows injuries seems to infer a situation of confrontation on the part of the appellant, which rules out a well-founded feeling of fear on the part of the appellant that would make the adoption of the protection order requested advisable, as there does not appear to be any risk that should be averted, as maintained by the judge «a quo», a criterion which this Court shares, as the victim continued to be in the company of the defendant for a long period of time in search of the mobile phone which she claims was taken from her by the defendant.
In light of the foregoing, we conclude that the protection order is not justified and, therefore, the appeal must be dismissed.
It is highly recommended to rely on a specialized criminal lawyer with expertise in “gender- based violence” if a “restriction order” is sought.