Abuser Restriction Order: An Effective Tool for Countering Domestic Violence

If you have any questions please call us by phone 050 052 44 04 or email advokat@novakovska.com. JSC Novakovskaya & Partners is always ready to help you.

Restrictive order:

1. Occurrence, concept and possibilities

2. Procedure for receiving

3. Grounds for refusal to extradite

4. Consequences of non-compliance

5. Evidence and evidence of domestic violence

6. Regulatory framework

This resource will provide you with answers to some of the most common questions raised when receiving a restraining order to counter domestic violence.

Occurrence, concept and possibilities

Despite the rapid growth of domestic violence, the legislator adopts a number of laws, regulations, instructions aimed at countering domestic violence. In such circumstances, the court was empowered to issue restraining orders against perpetrators of domestic violence.

Restrictive order is an event of temporary restriction of rights and imposition of duties on a person who has committed domestic violence, aimed at protecting a person who has suffered from such violence.

The court, with the help of a restraining order, can restrict the rights or oblige the offender: 1) prohibition of stay in the place of cohabitation; 2) elimination of obstacles in the use of property, common or personal property of the injured person; 3) restrictions in communication with the injured child; 4) prohibition to approach a certain place where the injured person is usually located; 5) prohibition to search for the victim; 6) prohibition to conduct correspondence or carry out telephone conversations with the injured person personally or through third parties.

Receiving procedure

To obtain a restrictive order regarding the offender, the current legislation provides for a judicial procedure. Directly the entire consideration of the case takes place in the order of a special procedure.

The application is considered in the presence of the applicant and the interested person (offender). If the applicant's participation poses a threat of further discrimination or violence for him, the case can be considered without his participation.

The applicant can be:

• the injured person or his representative;
• if the child is injured - the guardianship and trusteeship authority, relatives, parents, stepfather or stepmother;
• if an incapacitated person - a guardianship and trusteeship body, a guardian (if the person is incapacitated).

Court fee - none

The place where the application is submitted is to the court at the place of residence of the injured person. If the injured person is in a domestic violence center, then the application is submitted to the court, which is located at the location of the center.

The term for consideration of the application - the legislation establishes a period of 72 hours, but in fact, not less than a month.

The decision is made by the court on the basis of a risk assessment.

After making a positive decision on issuing a restrictive order, the judge informs the police, which, in turn, also take the offender on a preventive record.

Grounds for refusal

Applying for a restraining order does not always guarantee a positive outcome (getting the required decision). Judicial practice has various grounds for refusing to satisfy the application. Typically, such refusals are based on the following grounds:

• competition of norms - sometimes judges give priority to property rights, and therefore cannot restrict a person's access to her housing on the grounds that the victim lives in this housing. In such cases, it is advisable to recall the principle of proportionality, including disregarding human rights, which are provided for in the Constitution and note that human health is the highest value;
• immunity of the presumption of innocence - according to some judges, a person is considered not to have committed domestic violence until proven otherwise. The standard of proof is usually used as in criminal cases. In such cases, it should be remembered that the restrictive order, unlike the Administrative Code and the Criminal Code of Ukraine, is not intended to punish a person, and its purpose is to protect a person;
• the requirement to prove consistency - sometimes the judges come to the conclusion that the applicant must prove consistency, but the applicant actually needs to indicate circumstances that indicate consistency;
• lack of understanding of the legal nature of the restraining order - sometimes judges believe that domestic violence should be accounted for exclusively by court decisions that establish the fact of domestic violence. There are also cases when judges require proof of domestic violence on the basis of documents obtained under the Code of Administrative Offenses. However, in reality, it is enough to prove the fact that there was violence and it can be repeated;
• poor-quality preparation of the application - this may be inappropriate form or content.

Consequences of non-compliance

The current legislation provides for liability for deliberate failure to comply with restrictive orders, namely, the consequence of such failure will be arrest for up to six months or restriction of freedom for up to two years (Art. 390-1 of the Criminal Code of Ukraine).

The punishment in the form of arrest consists in keeping the convicted person in isolation and is established for a period of one to six months (part 1 of article 60 of the Criminal Code of Ukraine). Arrest does not apply to persons under the age of sixteen, pregnant women and women with children under the age of seven (part 2 of article 60 of the Criminal Code of Ukraine).

The punishment in the form of restriction of freedom consists in keeping a person in open penitentiary institutions without isolation from society in conditions of supervision over him with the obligatory involvement of the convicted person in labor (part 1 of article 61 of the Criminal Code of Ukraine). It should be remembered that the restriction of freedom does not apply to minors, pregnant women and women with children under the age of fourteen, to persons who have reached retirement age, conscripts and to persons with disabilities of the first and second groups (Part 3 of Art. 61 Of the Criminal Code of Ukraine).

Analyzing the sentences of the courts of first instance, one can see that the following types of punishments are usually imposed:

• punishment in the form of arrest for a period of 3 (three) months (court case No. 444/3144/20);
• punishment in the form of arrest for a period of 6 (six) months (case No. 163/1209/19);
• punishment in the form of 1 (one) year of imprisonment (court case No. 607/14300/20).

Evidence of Domestic Violence

Although it was stated above that the burden of proof is almost absent in these cases, it still exists. The list of evidence is virtually unlimited and will depend on each specific situation and the type of domestic violence.

Usually, to obtain a restraining order, the following proofs are used in copies: 1) marriage certificate; 2) birth certificate of children; 3) appeal to the police and the grounds for this appeal; 4) an urgent prohibition order; 5) the results of contacting the police (a conversation was held); 6) a court order on bringing to administrative responsibility; 7) certificates from the hospital about the call or that the person has treated injuries; 8) documentary evidence of contacting domestic violence centers or social services in order to undergo a rehabilitation program for victims of domestic violence; 9) video committing domestic violence; 10) SMS messages between the offender and the victim; 11) others.

The examination of the cassation appeals by the Supreme Court for the issuance of the restraining order shows that the court usually draws attention to the following:

• when deciding whether there are grounds for issuing a restraining order, courts must establish what forms of domestic violence the applicant has been exposed to and assess the risks of continued domestic violence in any form in the future. Similar conclusions are contained in the decisions of the Supreme Court of April 17, 2019 in case No. 363/3496/18 (proceedings No. 61-4830sv19), on September 26, 2019 in case No. 452/317/19-c (proceedings No. 61-12915sv19), dated 17 June 2020 in case No. 509/2131/18 (proceedings No. 61-271сv19), dated December 23, 2020 in case No. 753/17743/19 (proceedings No. 61-23053св19), dated February 24, 2021 in case No. 570/2528/20 (production No. 61-16103sv20);
• Taking into account the provisions of the Law of Ukraine "On Preventing and Countering Domestic Violence", the restrictive order is not inherently a punishment for a person (unlike the norms enshrined in the Administrative Offenses Code and the Criminal Code of Ukraine), but is a temporary measure performing a protective and protective function and aimed at preventing the commission of violence and ensuring the priority safety of persons, taking into account the presence of the risks provided for by the above law, before deciding on the qualification of the offender's actions and making a decision regarding him in the relevant administrative or criminal proceedings;
• the arguments of the cassation appeal OSOBA_6 that he did not receive the status of an "offender", since he was not brought to responsibility for committing domestic violence, are not justified, since the fact of not bringing a person to legal responsibility cannot be a reason for refusing to establish temporary restrictions in the presence of other objective data, which support the arguments of the applicant;
• combating domestic violence is one of the important areas of social development. It is viewed not only as a social problem, but primarily as a problem of protecting human rights and, above all, the rights of women. When violence is committed in the family, it violates the rights and freedoms of a particular person, requires intervention from the state and society.

Normative base

1. Civil Procedure Code of Ukraine.

2. Law of Ukraine "On Preventing and Countering Domestic Violence".

3. The Council of Europe Convention on the Prevention and Combating of Violence against Women and Domestic Violence of 11.05.2011.

4. Law of Ukraine "On ensuring equal rights and opportunities for women and men."

5. Resolution of the Cabinet of Ministers of 22.08.2018, No. 658 "On approval of the Procedure for interaction of entities carrying out activities in the field of preventing and countering domestic violence and gender-based violence."

The material was prepared by a practicing lawyer, partner of JSC Novakovskaya and partners Yanchuk Anatoly Anatolyevich.

If you have any questions please call us by phone 050 052 44 04 or email advokat@novakovska.com. JSC Novakovskaya & Partners is always ready to help you.