Protection Measures in Gender Violence: Types, Duration, and Specialized Courts : Lexiel

Protection Measures in Gender Violence: The Spanish Legal Framework

Gender-based violence remains one of the most serious social problems in Spain. The Spanish legal system has developed a comprehensive protection framework through Organic Law 1/2004 of December 28 on Comprehensive Protection Measures against Gender Violence, complemented by procedural instruments such as Article 544 ter of the Criminal Procedure Act (LECrim). This article provides an in-depth analysis of the different protection measures available, their processing, and the competent judicial bodies.

Concept and Scope of Application

Gender violence, for purposes of Law 1/2004, encompasses any act of physical or psychological violence, including attacks on sexual freedom, threats, coerción, or arbitrary deprivation of liberty, exercised against a woman by someone who is or has been her spouse, or who is or has been linked to her by similar relationships of affection, even without cohabitation (Art. 1 LO 1/2004).

This concept is narrower than domestic violence under Art. 173.2 of the Criminal Code, which covers family relationships in general. The distinction is relevant because it determines the jurisdiction of the specialized Violence against Women Courts.

The Protection Order: Art. 544 ter LECrim

The protection order is the central procedural instrument of the protection system. Regulated under Art. 544 ter LECrim (introduced by Law 27/2003), it allows the judge to adopt criminal, civil, and social assistance measures in a single resolution.

#### Requirements for Granting

Two prerequisites must concur for a protection order to be issued:

Well-founded evidence of the commission of a crime against the life, physical or moral integrity, sexual freedom, freedom, or security of the victim (fumus boni iuris).
Objective risk situation for the victim requiring the adoption of protective measures (periculum in mora).

The Supreme Court's case law (STS 618/2014 of September 22) has established that these requirements must be assessed jointly, without requiring full proof of the facts, given the precautionary nature of the measure.

#### Standing and Filing

The following persons may request a protection order:

The victim herself

The Public Prosecutor
Any person related to the victim under Art. 173.2 CP
Public or private assistance entities or organizations aware of the situation

The request may be filed before the Duty Judge, the Public Prosecutor, law enforcement agencies, victim assistance offices, or social services. The standard form is available at police stations and Victim Assistance Offices.

#### Urgent Processing

The law imposes a maximum period of 72 hours from the request for the hearing before the Duty Judge (Art. 544 ter.4 LECrim). In practice, when there is extreme urgency, the hearing may be held on the same day as the request.

The judge will summon an urgent hearing with the victim or her legal representative, the applicant if different, the alleged aggressor (assisted by counsel), and the Public Prosecutor. The non-appearance of the aggressor, duly summoned, does not prevent the hearing or the adoption of the protection order.

Types of Protection Measures

The Spanish system provides three categories of measures that may be adopted simultaneously.

#### Criminal Measures (Art. 544 bis and 544 ter LECrim)

Criminal measures include:

No-approach order prohibiting the aggressor from approaching the victim, her family members, or other specified persons, her home, workplace, or any place she frequents (Art. 544 bis LECrim). The usual minimum distance is 500 meters, though it may be extended.

No-contact order prohibiting any communication with the victim by any means: telephone, email, instant messaging, social media, or through third parties.

Residence prohibition barring the aggressor from residing in a specific municipality, neighborhood, or locality.

Weapon seizure and confiscation of dangerous objects, with revocation of firearms licenses if applicable.

Pretrial detention of the aggressor in the most serious cases, under Arts. 502 et seq. LECrim.

Electronic monitoring of compliance through GPS devices (electronic ankle bracelets), regulated by the Protocol for electronic monitoring of restraining orders in gender violence cases.

#### Civil Measures (Art. 544 ter.7 LECrim)

When the victim requests or consents, and there are minor children or persons with disabilities living in the family home, the judge may adopt civil measures:

Assignment of the family home to the victim.

Custody, visitation, communication, and stay arrangements with children.
Provisional child support arrangements.
Any child protection measure necessary to avoid danger or harm.

These civil measures have a temporary validity of 30 days (Art. 544 ter.7 LECrim). If a family proceeding is initiated before the civil court within that period, the measures remain in force for 30 days following the filing of the claim. Otherwise, they expire automatically.

#### Social Assistance Measures

The protection order entitles the victim to a range of rights and benefits:

Active Insertion Income (RAI) for gender violence victims.

Priority access to subsidized housing and public residences.
Mobile teleassistance program (ATENPRO).
Financial aid under Art. 27 of LO 1/2004 (lump-sum payment equivalent to 6-18 months of unemployment benefit).
Employment rights: reduced or reorganized working time, geographical mobility, contract suspensión with job reservation.

Violence against Women Courts (Tribunales de Instancia de Violencia sobre la Mujer)

LO 1/2004 created the Violence against Women Courts (JVM), with specific jurisdiction in criminal and civil matters. Their regulation is found in Art. 87 ter of the Organic Law of the Judiciary (LOPJ).

#### Criminal Jurisdiction

The JVM handle the investigation and, where applicable, adjudication of:

Crimes under Arts. 153, 171.4 and 5, 172.2 and 3, and 173.2 CP (injuries, threats, coerción, and habitual family violence).
Any crime committed with violence or intimidation against a current or former spouse or partner.
Minor offenses under Titles I and II of Book III of the CP when the victim is a current or former partner.

#### Civil Jurisdiction

The JVM assume exclusive civil jurisdiction in certain family proceedings when gender violence acts are present:

Filiation, maternity, and paternity.

Annulment, separation, and divorce.
Parent-child relationships.
Adoption or modification of measures with family significance.
Custody of minor children.
Child support claimed by one parent against the other.
Consent requirements in adoption.
Opposition to administrative decisions regarding minors.

Duration and Review of Measures

The duration of protection measures depends on their nature:

Criminal precautionary measures: They remain in force while the risk situation persists and may be extended or modified ex officio or at the request of a party. If a conviction is handed down, the measures may become accessory penalties (Arts. 48 and 57 CP) with a duration set by the sentence.

Civil measures: Valid for 30 days, extendable if family proceedings are initiated.

Accessory penalties: After a final conviction, the no-approach and no-contact prohibition lasts for the period set in the sentence, which may not be less than one year or more than ten years for serious offenses (Art. 57.1 CP) or less than one year or more than five years for less serious offenses (Art. 57.2 CP).

Art. 544 ter.11 LECrim allows the judge to modify, extend, or revoke the protection order at any time during proceedings when the circumstances that warranted its adoption have changed.

Breach of Measures: Criminal Consequences

Violation of precautionary measures or the penalty of no-approach or no-contact constitutes the crime of breach of sentence or precautionary measure (Art. 468.2 CP), punishable by imprisonment from six months to one year.

The Supreme Court's case law (Non-Jurisdictional Plenary Agreement of November 25, 2008) established that the victim's consent does not exempt the aggressor from criminal liability for the breach. This doctrine was confirmed by subsequent judgments such as STS 39/2009.

Lexiel and the Protection of Gender Violence Victims

Lexiel AI supports lawyers specializing in gender violence with tools such as semantic case law search across the Supreme Court and Superior Courts of Justice on protection measures, access to updated protection order request templates, and automatic verification of legal citations against official sources (BOE, CENDOJ). These capabilities allow urgent requests to be prepared with maximum diligence and precisión -- critical in situations where the victim's safety is at stake.

Frequently Asked Questions

How long does it take to obtain a protection order?

The judge must rule within a maximum of 72 hours from the request (Art. 544 ter.4 LECrim). In emergency situations, the hearing may be held the same day. If requested outside court hours, the Duty Judge is competent.

¿Can the victim waive the protection order?

The victim may request the extinction of civil measures, but criminal measures do not depend on her will. The judge may maintain them ex officio or at the request of the Public Prosecutor if the risk situation persists (STS 39/2009).

What happens if the aggressor violates the restraining order?

It constitutes the crime of breach of sentence or precautionary measure under Art. 468.2 CP, punishable by imprisonment from six months to one year. The victim should call 112 or 016 immediately.

¿Do protection measures extend to children?

Yes. The judge may adopt child protection measures within the protection order, including custody arrangements, visitation regimes, and no-approach orders regarding children if risk exists.

What is the difference between a protection order and ordinary precautionary measures?

The protection order is a specific instrument for gender violence that allows the simultaneous and urgent adoption of criminal, civil, and social assistance measures. Ordinary precautionary measures (Art. 544 bis LECrim) are more limited and do not activate the associated social benefits.

¿Is a lawyer required to request a protection order?

A lawyer is not strictly necessary for the initial request, which may be filed directly with the police or court. However, legal assistance is highly recommended and is free for gender violence victims regardless of their financial resources (Art. 20 LO 1/2004).