Protection order and appeal on its motivation
one protective order responds to a risk assessment and may be subject to appeal. In the document examined, the defence questioned the motivation for the measure and the conditions under which the previous action had been carried out. The case allows us to distinguish precautionary protection and final criminal decision.
What was the defence arguing?
The appeal alleged that a protection order had been agreed and that the person under investigation had not been heard with legal assistance under the conditions that the defence considered necessary. It also discussed how the reported threats and the circumstances of the file had been assessed.
They were arguments in the appeal, not a judicial declaration that defects existed or that the risk was non-existent. The appealed resolution and the proceedings of the hearing had to be reviewed to find out what happened and what reasons supported the measure.
A precautionary measure is not equivalent to a sentence
Article 544 ter of the Criminal Procedure Law contemplates the protection order when the legal requirements are met. The precautionary decision requires its own assessment of evidence and risk, different from that corresponding to a sentence penal.
That is why the presumption of innocence should not be presented as a general impediment to adopting protection. Nor can it be said that a statement by the complainant lacks value because it is not accompanied by a certain type of test. The entire actions and motivation of the case must be examined.
What should be reviewed when preparing the resource
The order, its notification, the minutes or record of the hearing and the documentation that allows the reasons invoked to be contrasted are essential. The appeal must indicate what point is being challenged and what change is requested, respecting the applicable deadlines.
The presentation of the appeal does not authorize the violation of current prohibitions. Communications, approaches or family deliveries must comply with what was agreed while the measure remains in force. The original document requested review; There is no result here that allows us to affirm that the order was revoked or that the reported facts were discarded.
matrimonialistas Abogados can help you review the documentation and assess the options applicable to your situation.
Criminal Procedure Law article 544 ter · BOE ↗ (opens in a new tab)