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Post-hearing Order for Protection Remedy

Legislation should provide for an order for protection remedy that is independent of any other legal proceeding. The order for protection is much like the emergency or interim order for protection, but it should be issued after a full hearing and the order should provide protection and assistance remedies for a longer period of time. The goals of victim safety and offender accountability remain paramount in both types of protective orders.  Legislation on orders for protection should provide that:

The complainant/survivor or the guardian of a minor or legally incompetent complainant/survivor should have standing to apply for an order for protection. If the legislation allows other family members, relevant law enforcement officials, or other professionals, such as social service professionals, to apply for orders for protection on behalf of a complainant/survivor who is competent, legislation should require that the complainant/survivor be consulted.  (See: law of South Africa, 4 (3); law of Philippines, Section 11; and UN Handbook 3.10.6) Legislation should ensure that the complainant/survivor’s wishes are the final factor in determining who may apply for an order for protection, because complainant/survivors are most often the best judge of the dangers presented to them by violent offenders. These dangers may increase when a complainant/survivor applies for an order for protection. 

Legislation should allow a victim to file an application for an order for protection in pending proceedings that involve the victim and perpetrator(s). For example, India’s Protection of Women from Domestic Violence Act, 2005 allows a victim to apply for relief “in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act” (Article 26(1)). The victim may seek such remedy in addition to or along with other relief sought in legal proceedings before a civil or criminal court (Article 26(2)). The High Court of Chhattisgarh upheld this right in the case where a victim filed an application under the domestic violence law before a family court under Article 12 of the law. The Court ruled that a victim may file an application under the domestic violence law under Article 26 in any pending proceeding (as opposed to Article 12). See: Lawyers Collective, Staying Alive: Second Monitoring & Evaluation Report 2008 on the Protection of Women from Domestic Violence Act, 2005, 2008, p. 64.

The testimony of the complainant/survivor, in court or by sworn affidavit, should be sufficient evidence on its own for the issuance of an order for protection. No further evidence, police reports, medical reports or other reports should be necessary. (See: UN Handbook 3.10.7; and law of Bulgaria, Ch. 1, S.13 (3))

Legislation should provide for timely hearings on protection orders. For example, the law of Philippines allows for priority hearings for applications for protective orders. Section 20. India’s Protection of Women from Domestic Violence Act, 2005 states that the magistrate should schedule the date of the first hearing within three days of the court’s receipt of the application (Article 12(4)), and to strive to dispose of the application within 60 days of the first hearing (Article 12(5)).

Legislation should specify that the violation of an order for protection, emergency or regular, is a crime.  See UN Handbook 3.10.9, and law of Georgia, Article 10.

Promising practices:
Spain: 
The law of Spain, where violation of order for protection triggers a full hearing on increasing aspects of protection for complainant/survivor.

South Africa:  The law of South Africa, which provides that prosecutors may not refuse to institute a prosecution based on a violation of an order for protection, or withdraw a charge based on a violation of an order for protection, unless they have received authorization to do so from a Director of Public Prosecutions. Section 18 (1)

 

Legislation should provide for increased penalties for repeat violations of orders for protection. See: law of Sierra Leone, Part III, 19. For example, Pakistan’s draft domestic violence law (2009), which states that violation of a protection order or interim protection order by the respondent is punishable by imprisonment between 6 months to one year and a minimum fine of 100,000 rupees to be given to the petitioner. Additional violations result in a prison sentence between one to two years and a minimum fine of 200,000 rupees to be given to the petitioner (Article 13 (1), (2)).

Promising Practices:

India: India’s domestic violence law makes a violation of an order for protection a cognizable and non-bailable offense. In charging the offense, the magistrate may also bring charges under Section 498A of the Penal Code, Husband or relative of husband of woman subjecting her to cruelty, if the facts support it. Importantly, the court may find that a violation of an order for protection occurred based upon the sole testimony of the victim (Articles 31, 32). India’s domestic violence rules allow a victim to report a violation of a protection order to the Protection Officer, judge or police. A victim may seek the assistance of a protection officer in seeking help from the police and filing a police report in cases of violations of protection orders (Article 15(1), (4)-(5)). 

United Kingdom: The United Kingdom Protection from Harassment Act (1997), which allows a court to place a restraining order on the defendant even if he is acquitted of a criminal offense, in order to offer protection to the survivor.  This allows the use of evidence in a criminal court which would normally be admissible only in a civil court under UK law, thereby extending further protection to complainant/survivors. Sec. 5  See: Combating violence against women: Stocktaking study on the measures and actions taken in Council of Europe member states (2006).