First of all, it is advisable to know what we mean by a restraining order?
Well, the Explanation of Reasons of Law 14/1999 defines it as “a precautionary measure that allows physical distancing between the aggressor and the victim.”
Therefore, when the term “aggressor and victim” is referred to, we tend to relate it to the accessory penalties established in article 57 of the Penal Code in relation to article 48 of the same code. Article 48 of the CP establishes the deprivation of the right to reside in certain places or go to them, as well as the place where the crime was committed, or the place where the victim or her family resides, if they are different. For its part, article 57 talks about the crimes on which this restraining order measure will fall and in turn the maximum time for which they can be imposed: 10 years in cases of serious crimes and 5 in less serious crimes, with exceptions.
The main purpose pursued with the restraining order is to facilitate the immediate protection of the victim. For this reason, the Law not only speaks of the prohibition of residing in a certain place, neighborhood, municipality, province, local entity or CCAA, but also refers to the prohibition of going to said places or approach and communicate with the victim.
Now, could these measures established on the restraining order be revoked?
The answer is YES, but we must bear in mind that each case in question is different and that we will have to stick to its circumstances. For this reason, it is always advisable to go to a lawyer specialized in Family Law and Criminal Law who can advise loyally and diligently on the chances of the case succeeding. At our Law Firm, we will be happy to offer all the accessible ways to make your situation fruitful.
What would be the procedure to request the revocation of the restraining order?
As we have already indicated, each lawsuit is different and the circumstances, no matter how similar they may be, have to be treated separately. Roughly speaking, the steps to follow to achieve the judge’s conviction are as follows:
Establish solid and convincing arguments about the current situation between victim and aggressor.
That the aggressor has complied with the conditions imposed on him in the order. As well as having received psychological treatment that certifies a real change.
Prove compliance with the order for the established time.
Consent between both parties and that it is real, without coercion.
The judicial body in charge of establishing the restraining measure will be the same one that hears about this request. Therefore, it is advisable that the aggressor attend the hearing that is going to be scheduled. The key, in our opinion, is to establish a good document with all the necessary evidence and documents (witnesses, good behavior of the aggressor, psychological report, etc.) that can obtain the guardianship requested. Furthermore, in any case it is necessary for the aggressor to continue strictly complying with the imposed measure until obtaining a judicial resolution since failing to comply with it beforehand will mean serious problems in getting the measure lifted. However, it must be taken into account that the period to obtain a judicial response will depend on the volume of matters that the Court or tribunal hearing about the case has. Generally, it should take between one and six months.
For more detailed and explanatory advice, please contact our law firm. We will be happy to offer you the advice and representation you deserve.
Piñera del Olmo
Aribau 114, entlo 2a
08036 Barcelona
Phone: +34 93 514 39 97
Fax: +34 93 127 07 66
Email: rpinera@pineradelolmo.com