Emergency or ex parte order for protection remedy
- Legislation should include an emergency or ex parte protection order as a vital aspect of a domestic violence law. An ex parte protection order is based upon the assumption that the victim is in danger of immediate harm and must be protected by the state. The safety of a victim and her children should be the most urgent priority of the legislation.
Example: The Law of Sierra Leone states that:
“(1) Where an application is made ex parte to the court for a protection order, the court shall issue an interim protection order if it considers the order to be in the best interest of the applicant.
(2) In determining whether it is in the best interest of the applicant to issue an interim protection order, the court shall take into account-
(a) whether there is a risk of harm to the applicant or a relation or friend of the applicant if the order is not made immediately…” Part III 12
Example: The law of Namibia requires a court to issue an ex parte order if the court finds that domestic violence has been committed. Section 7 (1)
- Legislation should authorize the issuance of an emergency or ex parte protection order issued by a court or the police, but without the necessity for a court hearing. The applicant should be able to approach the court without legal representation to apply for a protection order.
- Legislation should state that the statement of the applicant is sufficient for the court to grant the emergency protection order. No other evidence should be required.
- Legislation should require that emergency protection orders be issued very quickly to support the goal of victim safety.
Example: Bulgaria’s Protection Against Domestic Violence Act (hereinafter “Law of Bulgaria”), Ch. 2, S.18, states:
Where the application or request contains data concerning a direct and impending threat to life or health of the victim, the regional court, sitting ex parte and in camera, shall issue an emergency protection order within 24 hours as from receipt of the application or request. Ch. 2, S. 18 (1)
- If the legislation allows other family members, or relevant law enforcement officials or other professionals, such as social workers, to apply for emergency or ex parte protection orders on behalf of a victim who is competent, it should require that the victim consent. (See: Addendum to Administrative Procedure Code of Georgia, Article 21.12.)
- The legislation should state that violation of the emergency or ex parte protection order is a crime. See Law of Georgia, Article 10: “Failure to comply with the conditions prescribed by protective and restrictive orders shall lead to criminal responsibility of the abuser.”
- The legislation should state that the authorities may not remove an applicant from the home against her will.
The emergency or ex parte order should remain in effect until the longer-term protection order comes into effect after a full court hearing. Legislation should provide that upon the request of the respondent, a hearing may be promptly scheduled to review the application and determine whether the order should remain in effect.