CRIMINAL
Álvaro de la Rica
The Organic Law 1/2004, of December 28, on Comprehensive Protection Measures Against Gender Violence, introduced in its Article 64 the possibility of using technological instruments to verify immediate compliance with judicial prohibitions on the investigated, accused, or convicted individual approaching the protected person. This prohibition restricts the perpetrator from approaching the victim “in any place where they may be, including their home, workplace, or any other location frequented by them.”
Articles 48 of the Criminal Code and 544 bis and ter of the Criminal Procedure Law (LECRIM) serve as the legal foundation for telematic monitoring of restrictions and measures prohibiting approach. These laws are implemented through protocols that regulate their operation. For this reason, in 2004, a protocol limited to the judiciary’s authority was approved, allowing courts to determine whether a measure should be controlled with telematic devices. This protocol was signed by the Ministries of Justice and Interior, the General Council of the Judiciary, and the Office of the Prosecutor General.
On July 9, 2009, almost five years after the law came into force, the first protocol titled “System for Monitoring Approach Restriction Measures in Gender Violence Cases Using Telematic Means” (hereinafter “the System”) was approved. This agreement was signed by the Ministries of Justice, Interior, Equality, the General Council of the Judiciary, and the Office of the Prosecutor. That same year, the Government Delegation against Gender Violence acquired and distributed the first 3,000 devices to courts and tribunals with jurisdiction in cases of violence against women. By the end of 2009, 153 devices were active.
Recently, in 2024, this Protocol has been updated to extend its application beyond monitoring penalties and precautionary measures prohibiting proximity. The updated protocol now includes monitoring restrictions imposed as conditions for suspending the execution of custodial sentences (as per Article 83 of the Criminal Code) and those imposed in supervised release contexts (under Article 106 of the Criminal Code). Accordingly, the updated System aims to improve the safety and protection of victims, fostering their confidence and aiding in their recovery.
This System ensures compliance with proximity restrictions imposed by courts in cases of gender violence and sexual violence under Organic Law 10/2022, of September 6 (commonly known as the “Only Yes Means Yes” Law). It applies throughout investigation, trial, and execution phases—not only when proximity restrictions are imposed as precautionary measures or penalties (in accordance with Articles 48 of the Criminal Code and 544 bis and ter of LECRIM) but also in supervised release contexts or as conditions for suspending custodial sentences.
With the recent update, the System provides real-time, continuous updates on any incidents—whether accidental or intentional—affecting the enforcement of these prohibitions and the functioning of surveillance equipment. Enhancements in security through the System aim to achieve three key objectives:
- Ensuring the victim’s right to safety.
- Documenting potential breaches of proximity restrictions, whether as penalties, precautionary measures, or conditions of supervised release or suspended sentences.
- Deterring the investigated, accused, or convicted individual from violating court-imposed restrictions.
The Protocol’s objective is to standardize the operation of the System, establishing general guidelines for the actions and communications of those involved in these situations. It aims to ensure an understanding of the System’s functionality and effectiveness, facilitating appropriate intervention and protection in each specific case.
For the purposes of applying the Protocol, the term “victims” includes women who have experienced gender violence, their minor children, and individuals under their guardianship or custody (as outlined in Article 1 of Organic Law 1/2004). It also includes women, girls, and boys who have been victims of sexual crimes in Spain, as specified in Article 3 of Organic Law 10/2022.
The recent update to the Protocol was prepared based on recommendations from the Monitoring Committee of the Protocol for the Implementation of the System for Monitoring Approach Restriction Measures in Gender Violence Cases Using Telematic Means. It was approved by the Technical Committee of the National Commission for Coordination of Judicial Police at its December 13, 2011, meeting.
