Those who have been convicted or have been imposed an injunction not to approach or communicate with the victim, will commit a crime of breach of sentence if they fail to comply with the measure. This is the second crime of breach of sentence of art. 468 of the Penal Code and is punishable by imprisonment from 6 months to 1 year.
If a person has been imposed a measure of distance, and the victim voluntarily agree to live together again or contact therewith, the crime of breach will be committed by him who hath imposed a restraining or no communication with the victim. The reason of the commission of the new offense is that the legally protected by the penal law, is not the victim but the Administration of Justice. Therefore, it is an offense against the administration of justice, which is harmed by the crime.
The Supreme’s Court Agreement, 25.11.2008 indicates that the consent of the victim does not exclude the breach of the restraining order imposed as a precautionary measure or judgment.
The AP Ciudad Real in judgment of 11.12.2012 states that "findings of fact are constitutive of a defined and punished in the Arts continuing offense of breach of injunction, crime. 468.2 of the Criminal Code offense of which appears responsible for author defendant Jose Pedro, having directly and voluntarily made the facts that make this offense. On that score alone and authorship debate prompted the accused's defense was that relating to the consent of the victim. On that point is settled and held by the Criminal Chamber of the Supreme and T. jurisprudence has come to deserve a non-jurisdictional Agreement plenary of 25 November 2008, to the effect that "the consent of the protected by the criminal conviction victim can not eliminate the illegality of the act, "and that, because in this case happens, the restraining order as a prohibition imposed by judicial authority is mandatory, and can NEVER be left to the whether individuals affected, and that the social function of punishment is the ratification of the validity of the standard against the wrongful act of a legal right, and such a function can not depend on the willingness of the private subject. "
However, one of the necessary requirements to understand comitted the breach of sentence is the subjective element, as to break the restraining or prohibiting approach order. There is case law that holds that the subjective element, the intent has to be specific to assess the offense, so that excludes mere chance encounters between the offender and the victim.
Although the above criteria seems an injustice because, if a couple decides to live together again the law should not impede it, the fact is that today applying the jurisprudence of our courts, if there is a measure of restraining or prohibition to communicate with the victim, this must be complied, regardless of whether the victim consents or want to renew contact or common life, since otherwise it could happen that we face an offense of breach of sentence or measure.