RESTRAINING ORDERS IN AUSTRIA, AS THE EXAMPLE FOR THE HUNGARIAN SYSTEM

RESTRAINING ORDER IN THE HUNGARIAN LEGAL SYSTEM 1 Andrea Noémi Tóth

2 RESTRAINING ORDERS IN AUSTRIA, AS THE EXAMPLE FOR THE HUNGARIAN SYSTEM

The model of the Hungarian restraining order was the system operating in Austria, which also has three pillars. We need to mention that the three pillars in Austria are not the same as in Hungary. In Austria, the parliament realized that the domestic violence is not a ’private affair’, but a public and political problem. The first Domestic Violence Act entered into force in 1st May 1997. This Act contained the three pillars of the restraining orders: the emergency barring order, the protection order by the Civil Court and network of services supporting women.

2.1 The emergency barring order

The first option is the so-called emergency barring order which can be ordered by the police on the scene, after a crime of violence. The police shall evict the dangerous person from the dwell of the victim. Until 1st June 2009 the barring order was issued for 10 days, in the second package of acts on the protection against violence, this period was extended 2 weeks. When the barring order is violated, the person will be fined (360 Euros) and in case of the repeated violation, the person will be arrested. The police controls the execution of the order in a previously not determined time. 2.2 The temporary injunction

The first Domestic Violence Act contained the protection order by the Civil Court. If the persons affected by violence decide in favor of longer-term protective measures, they can apply for a temporary injunction from the Civil Law Courts. If they intend to initiate divorce proceedings or proceedings to secure the dwelling, the duration of the temporary injunction is valid until these proceedings have been concluded. The temporary injunction can also be used to prohibit that the endangerer takes up contact with the victim, i. e. to prevent him from calling, writing letters or e- mails, from coming to her place of work and to the kindergarten or the school their kids attend. Upon application of the victim the police can enforce the temporary injunction at the Family Court and remove the perpetrator from the dwelling in case of a violation.11

2.3 The network of services supporting women

The network of services supporting women is the most important part of the Austrian system, which made example for other states. As Ms Myller stated in the explanatory memorandum: “Before the violence has actually taken place or before it has reached a certain level of severity, victims need to find authorities which are willing and legally able to accept a complaint, start investigations and take precautionary measures to ensure their physical safety and the safety of their children. In the immediate aftermath of violence, victims need to have their physical safety and security ensured, for example through the eviction of the perpetrator from the common residence or the provision of secure premises for themselves. They also need immediate access to health care, including a gender- sensitive and appropriate medical examination and treatment by properly qualified personnel who have also been trained in matters regarding violence against women. Finally, they need to have access to affordable legal advice from appropriately trained personnel on legal options, including taking of statements, preservation of evidence and seeking protection

VBR Act Section 5, paragraph (7)

The Austrian model of intervention in domestic violence cases, Division for the Advancement of Women, „Violence against women: Good practices in combating and eliminating violence against women”, expert paper prepared by Rosa LOGAR, Domestic Abuse Intervention Center, Vienna, 2005. s. 9.

orders. Long-term protection needs depend on the particular situation of the victim and the context of the violence. They may include: guaranteed continued access to secure shelter for the victims and their dependants; ongoing and confidential treatment for medical and psychological harm looking to long-term healing and rehabilitation; and provision for excused absence from employment or assistance in finding another job if it is not safe to return to the previous one.”12

The network of services fulfils those requirements and they secure an effective help for the victims. The victims can live in the houses of the network of services supporting women, and the collaborators accompany them to the police for make complaint, for bear witness and inform them of their rights and obligations in the criminal proceeding and they secure physical protection too. Currently, there are 26 women’s shelters in Austria with approximately 400 places for women and their children.

An expansive network of help organizations is a prerequisite for the elimination of violence against women. By providing adequate help a society signals that the problem of violence against women is taken seriously and the victims of violence are actively supported. Such a network is also necessary for meaningful prevention work by the police, courts and social, health and education institutions, which need women’s organizations as partners for counseling and supporting the women and children concerned. Women’s organizations are also important for legal measures to be applied in an effective manner.13

In addition, there are number of counseling centers for women, and since 1999, free helpline for women has been operating round the clock, which is financed by the federal government. 3 THE PROBLEMS OF THE HUNGARIAN SYSTEM

Whichever solution we consider, in my opinion none of them are actually suitable as an effective and lasting help for the victim, especially when it comes to domestic violence, as the restraint should be ordered to last until the end of the criminal procedure, at least until the final decision is adopted (but at the very least until the primary court withdraws to make its final decision, which should include also an order about further restraint), and not until numerically determined days or hours. Besides all that, no matter what authority orders restraint, the law offers no specific regulation on the execution of the decision and on the monitoring of it being adhered to or not.

Regarding execution, no regulation is applied concerning the possibilities of the person placed under restraint for finding lodging or shelter. CP has no rules on this, and what VBR Act prescribes is that the police or the court informs the perpetrators about the place and address of the institutions offering night shelter in the area of their residence, and about their terms of use.14 These institutions are the shelters for homeless people, and those are often avoided by the homeless themselves, so one can imagine the shameful situation the perpetrator might get into. But it also needs to be considered that if restraint was not ordered groundlessly,15 the only way to safely protect the victim is to keep the perpetrator away from them, and currently there is no such system of institutions in Hungary which could handle this problem by providing lodging or shelter for the person under the effect of a restraining order, so in lack of a better solution, these institutions were considered the best for this task. So if the perpetrators want to avoid choosing the homeless night shelter, they can only go to friends, or in an extreme situation, choose their own car as lodging. In my opinion, the solution would be an appropriately structured assistance network available in the bigger cities, but at least in every county town of the country, to where those under the effect of a restraining order could move temporarily.

My viewpoint is that this network could undertake “the role of a system of institutions preventing violence between relatives and the obligation to signal” included in Chapter II of VBR Act,

Protection order for victims of domestic violence, Parliamentary Assembly, Doc. 12786. 08 November 2011. s. 5.

VBR Act Section 5, paragraph (6)

Unfortunately, there are examples for restraint ordered groundlessly, which can be considered as a violation of rights. Legislators are prepared for this, the „Groundless initiation of preventive restraining” (Act II of 2012, Article 181) qualifies as a minor offence, nevertheless, the groundless initiation of temporary preventive restraining and restraining in criminal procedure is not sanctioned.

which is currently divided among several authorities – such as health services, police, the courts, the prosecutors service, the institutions of public education, the personal care service providers, and other foundations and associations – by the law.16

The legislator also felt the necessity of creating a system of signaling and of putting down the tasks that help prevention, but in my opinion the system will always function in a cumbersome way without the specific distribution of obligations and a system of institutions established particularly for these tasks, as when addressing several authorities at the same time, there is a possibility that none of them will consider those tasks as something belonging to their scope, and will expect another authority to come up with a solution.

The CP only mentions about monitoring execution that the court may order in its decision that the perpetrators should present in specific intervals at the investigating authority before the criminal proceeding is in progress, which is the basis for the restraint.17 Linguistically considering, this is a conditional sentence, thus it is only a possibility and not an obligation for the court, and upon disregarding this regulation, it can remain fully uncontrolled, whether the perpetrators adhere to the decision of the court, or will they stand under the window of the victim, shouting, on the same day when the decision had been made. It is not a substitution for monitoring, but there is a regulation that helps the decision to be adhered to, namely, that if the perpetrators deliberately violate the regulations and cannot exculpate themselves later, then they may be taken into custody, or if this is not necessary, a fine can be imposed on them as well.18 The violation of the other two types of restraining qualifies as a minor offence.19

4 CONCLUSION

In my opinion, the problem of monitoring the execution is one that should be settled by all means, as it results in the effectiveness of the legal institution being questioned, but it is a sad truth, that the police have no capacity for this beside their other obligations. In my viewpoint, to substitute the human workforce, electric wristbands could provide a solution, as they work effectively in other countries already, and with the help of this, a satellite could follow the movement of the person under restraint. Unfortunately it is not possible to apply this in our country due to financial problems, so the question of monitoring of restraint remains unanswered to this day. The networks mentioned above in connection with execution could be also involved in monitoring, as the co-workers of the service could follow the perpetrator, and although it is a Utopian vision, but they could even notify the victim, in case the perpetrator approaches them.

While going through these few anomalies, it already surfaces that although legislators in Hungary saw restraining as an effective weapon against domestic violence, they were not able to include it flawlessly into the Hungarian legal system. In spite of all this, the major part of the anomalies can be sorted out with a few modifications of laws, but there are some, for example the monitoring of the execution of restraint, for which financial conditions should be fulfilled. Nevertheless, both legislators and legal practitioners strive continuously to make restraining more and more effective, and that is reassuring, although we still have to wait for the system to work perfectly.

Hungary, as a member state of the European Union, must pay attention for the rules of EU law. Recently, the protection orders in the European Union member states have been given a new impetus thanking to the initiative for a Directive of the European Parliament and the Council on the European Protection Order (hereafter referred to as EPO)20. All European Union member states have criminal protection orders available, but at present they are effective only on the territory of the state which adopted them, thereby seriously impeding victims who wish to cross borders. Once implemented, the EPO would provide a legal basis for EU member states to recognize a victim protection order that was granted in another member state.21 The member states shall accord the level of the protection and they must secure an effective help for the victims of the domestic violence.

VBR Act Section 2, paragraph (1)

CP. Article 138/A, paragraph (4)

18 CP. Article 139, paragraph (2) 19 Act II of 2012, Article 168 20 OJ 21.12.2011 L338/2. 21

Suzan VAN DER AA: Protection Orders int he European Member States: Where Do We Stand and Where do we go from Here? Eur J Crim Policy Res DOI 10.1007/s10610-011-9167-6, s. 2.

Bibliography:

ELEK, Balázs: A vallomás befolyásolása a büntetőeljárásban. Debrecen: TKK, 2010. 200 pages ISBN: 978 963 596 572 4

HASPEL, Orsolya: A családon belüli erőszak rendészetének változásai. In: Magyar Rendészet, 2011, No. 3., s.17-23.

VAN DER AA, Suzan: Protection Orders in the European Member States: Where Do We Stand and Where do we go from Here? Eur J Crim Policy Res DOI 10.1007/s10610-011-9167-6

Directive of the European parliament and the Council on the European Protection Order, OJ 21.12.2011 L338/2.

Protection order for victims of domestic violence, Parliamentary Assembly, Doc. 12786. 08 November 2011.

Act II of 2012

Act LXXII of 2009, on Restraining Orders because of Violence Between Relatives Act XIX of 1998 on Criminal Proceeding

Contact Information: Dr. Andrea Noémi Tóth [email protected]

University of Debrecen. Faculty of Law, Department of Law of Criminal Procedure 26 Kassai str.

4028 Debrecen Hungary

In document Trestná politika štátu a zodpovednosť právnických osôb. Penal Policy of the State and Liability of Legal Entities (Page 182-186)