The protection order for victims of domestic and gender-based violence

In order to guarantee the protection of victims of gender and domestic violence, the protection order was created in 2003, through Law 27/2003, of July 31, 2003, which regulates the Protection Order for victims of domestic violence. Specifically, this instrument is regulated in art. 544 ter LECrim.

The protection order is a mechanism that allows the courts to adopt criminal and civil precautionary measures, as well as welfare and social protection measures, aimed at guaranteeing the safety of the victims of this type of violence.

Who can apply for a protection order?

The protection order may be requested by the victim herself, her legal representative, her close relatives, the Public Prosecutor’s Office or welfare entities that have become aware of the commission of a crime of domestic violence. There is even the possibility that the judge may order it ex officio, that is, without the need for a prior request from any of the aforementioned persons.

Where can the protection order be requested?

The order can be requested directly from the Court, the Prosecutor’s Office, Police Stations, Victim Assistance Offices, social services or Social Services.

What is the procedure followed for the adoption of the protection order?

The request for a protection order is sent to the Judge of Violence against Women, in cases of gender violence, or, in other cases, to the Duty Court.

In order to decide on the adoption of the protection order, it is essential that the competent judge convene an urgent hearing, which must be held within 72 hours of the filing of the application. At this hearing, the victim, the applicant (if different from the victim), the investigated party (accompanied by his attorney) and the Public Prosecutor’s Office must be present.

During the hearing, it is possible to take any evidence that is necessary to prove that the requirements that we will see below are met. For this reason, statements are frequently taken from the victim and the defendant, and other evidence may also be taken, such as medical reports accrediting the injuries suffered by the victim, statements from witnesses to the facts, etc.

Once the hearing has been held, the Judge must decide whether or not to grant the protection order, as well as the content of the measures included in the order and their duration.

What requirements must be met for a protection order to be granted?

Firstly, the protection order can only be granted to protect victims of domestic or gender-based violence, who may be the spouse or person united to the perpetrator by an analogous affective relationship, family members who live with the perpetrator, minors who are within their family nucleus of cohabitation….

Secondly, there must be well-founded indications of the commission of a crime against life, physical or moral integrity, sexual freedom, liberty or security. In other words, the protection order is not applicable to victims of any type of crime.

For example, a protection order cannot be granted for the commission of a crime against property (for example, theft or fraud), but it can be granted for crimes against persons, such as crimes of injury, sexual assault, threats… In addition, it is not enough that a complaint has been filed for these facts, but there must be evidence to suggest that one of the previously mentioned crimes may have been committed.

Thirdly, it is essential that the victim is in an objective situation of risk that implies the need to impose the protection measures in question. In other words, there must be a prognosis of future danger that the person alleged to have committed the crime will again attack the victim. To assess whether the victim is in this situation, the Courts take into account, among other factors, the perpetrator’s criminal history, the seriousness of the crime for which the protection order has been requested, the existence of previous complaints for similar events…

What measures can be agreed upon through the protection order?

As previously mentioned, the measures may be criminal, civil or welfare and social protection measures.

In relation to criminal measures, the judge may impose from the withdrawal of permits to possess weapons to the provisional imprisonment of the alleged aggressor. The most common is the imposition of a restraining order (prohibition of approaching the victim) or a prohibition of communication with the victim, either directly or indirectly, as well as a prohibition of approaching or residing in certain places frequented by the victim. It should be borne in mind that some of these measures have a legally established maximum period of duration and, on occasions, the judge himself limits their validity to a certain period of time.

Regarding civil measures, the most frequent are those related to the attribution of the use and enjoyment of the family home, the modification of the custody and visitation regime with the children, those related to the regime of guardianship and custody of the children, the establishment or modification of the alimony regime, among others. These measures are generally effective for 30 days. However, if the victim initiates, within said period, a family proceeding before the civil courts, the measures adopted will be maintained during the 30 days following the date of representation of the civil suit and, once the latter period has elapsed, the competent judge must decide whether to maintain, modify or annul them.

Finally, with regard to welfare and social protection measures, the protection order allows the victim to access the Active Insertion Income, financial aid, access to subsidized housing, certain employment rights or to apply for a residence permit due to exceptional circumstances.