Protection Orders per Member State
The general picture is that in Austria, victim protection is mainly regulated by means of civil interim injunctions with a maximum of 12 months and a possibility of extension upon violation. The violation of the injunction is a civil law offence. Although the criminal procedure also provides certain possibilities for protection (conditions to a suspended sentence or – possibly – a preventive custody) this is not core business. Apart from the barring order which can be imposed by the police, (long-term) protection mainly has to be procured through civil courts.
All five sources agree that in Belgium, both civil as criminal protection orders are readily available. Within criminal procedural law a conditional release from preventive custody and a conditionally suspended sentence are possible. Within civil procedures, the victim can ask for a protection order as well, although a violation of the order is not criminalized, but carries a civil penalty. Belgium has not introduced the barring order yet, but a legislative proposal to that end has been initiated and is currently being discussed in the Senate.
The Bulgarian criminal law system allows the criminal court to impose a penalty which restrains the free movement of the offender (Art. 42a CC). The following three prohibition measures are allowed: 1) a prohibition to attend certain areas, locations or establishments, 2) a prohibition to leave a populated area for more than 24 hours without permission of the public prosecutor or probation officer, and 3) a prohibition to leave his/her residence during certain hours of the day or night. These prohibitions, however, are only intended as a means to punish the offender, not as a protection mechanism for the victim (EPO questionnaire, p. 6). There are no reports of pre-trial criminal protection measures and barring orders seem to be absent as well. As for civil protection orders, these are only available to victims of domestic violence. The violation of civil protection orders is criminalized.
Criminal protection orders in Cyprus are only available to victims of domestic violence and trafficking. Probably, these are all post-trial orders (suspension of the sentence, autonomous protection order). If a person exhibits ‘threatening behavior’ a victim can file for a civil protection order against the offender, violation of which is criminalized. Barring orders are not available.
The Czech criminal law protection orders are limited to the post-trial stage (conditional suspended sentence, conditional release, and autonomous protection order) and, possibly, only a particular type of victim (former spouses, former cohabitants) is eligible. An interim civil measure can be imposed if the plaintiff’s life, health, freedom or human dignity is in danger and a violation of the measure is a criminal offence. The Czech legislator has recently introduced the barring order.
The most important and perhaps only source of victim protection in Denmark seems to be the orders administered by the police on the basis of Article 265 CC. If a person ‘violates the peace’ of another person, the police can issue a caution, usually on the request of the victim. It is not required that the violation of the peace constitutes a criminal offence. The caution remains valid for 5 years and a violation of the caution is criminalized. Only one source mentions the presence of civil protection orders, but none of the others. In cases of domestic violence, there are barring orders available.
Post-trial, if the offender is convicted of a crime, the victim can request the court to impose an autonomous criminal protection order with a term of up to three years (Art. 310 CCP). Pre-trial, the public prosecutor, the preliminary judge or the court can decide on criminal protection measures. Civil protection orders are available as well and violations are criminalized. There are no barring orders available.
In Finland, the Act on Restraining Orders provides for the majority of protection orders. The result is neither a purely criminal, nor a purely civil order. The order can be obtained in a quasi-criminal procedure that is not necessarily – not even usually – connected to a criminal prosecution. The victim, the police, the public prosecutor and social service workers can all apply for an order under the Act and the police are obliged to carry out an investigation as to the desirability of the order. In emergency situations, the police can issue an interim protection order. The violation of such a protection order is a criminal offence. Next to the orders under the Act on the Restraining Order, the courts can also impose orders in the course of a criminal procedure, but most orders are granted under the Act. On top of that, victims can also be protected by means of a barring order.
During the pre-trial stage the examining magistrate can order the suspect not to leave a certain area or to attend a certain place, while in the post-trial stage the courts can order the offender to refrain from contacting the victim as a condition to a suspended sentence. In France, the criminal procedure is the most important gateway to a protection order. Civil protection orders – if present at all – probably only extend to the eviction from a violent spouse from the home in case of divorce proceedings. There are no barring orders.
In Germany, autonomous criminal protection orders do not exist, but the court can give instructions to the offender in the context of a suspended sentence or a supervision of conduct. There was little information on pre-trial protection, possibly because it is absent. Civil protection orders, on the other hand, are widely documented. Under the Protection from Violence Law (and possibly other, more general civil procedures) the victims of domestic violence and stalking can file for civil protection orders. Infringements are criminalized. Germany has furthermore recently introduced the barring order.
When it comes to protection orders, the situation has recently improved in Greece. Before the introduction of the Domestic Violence Law of 2006 protection orders could be imposed, both pre-trial as post-trial, but mainly with the security of the suspect in mind. Threatened victims often had no alternative than to ask for police protection. Now, if victims meet certain criteria, they can request for a protection order which can be imposed by the criminal court, investigative judge or the judicial council. The Law also created the possibility to apply for interim protection orders in civil court. Although the data are somewhat contradictory, it seems as if a violation of a civil protection order can constitute a criminal offence.Footnote 14 Greece has not introduced the instrument of the barring order.
In Hungary, the rules for protection orders are laid down in the Act on Restraining. This Act only applies to relatives, (ex)spouses, and (ex)partners. The Act provides for two forms of protection orders: 1) a police-ordered temporary protection order of three days, and 2) a court-ordered civil protection order which lasts longer. The latter can be requested by the police or the victim. In the context of criminal proceedings, it is also possible to impose protection orders as a ‘coercive measure’. The 3-day police order is considered a barring order in Hungary.
In a criminal procedure, protection orders can be imposed by the courts in addition to or as an alternative to other sanctions. Even upon acquittal, the criminal protection order can be imposed. There is no information available on pre-trial protection orders. Victims can furthermore apply for civil protection orders under general civil tort law (violation of which is criminalized) and Ireland has also introduced the barring order.
As of 2009, the victim can ask the police to caution the offender (e.g., to stop the harassment). If the offender does not adhere to this caution, the crime of stalking can be prosecuted even without the otherwise required private complaint and it is an aggravated offence. One source furthermore mentions the option of protection measures in the enforcement phase of a conviction (EPO questionnaire), but two other sources complain about the limited means of the judicial authorities to protect the victim in both the pre- as the post-trial phase (Modena Group on Stalking (2007) and Brienen & Hoegen (2000)). Protection orders are furthermore available in civil proceedings on the basis of the 2001 civil law on protection orders, but possibly only when domestic violence is concerned or when the stalking occurs in the context of cohabiting partners. The goal is to enforce a separation from the violent partner. Violation of the civil orders is a criminal offence. Italy does not have barring orders.
In Latvia, it seems as if the criminal procedure only provides for pre-trial protection. As of 1 October 2005, the victim can request for a protection order which can be imposed by the police or the public prosecutor and which is valid until the final court decision. The European Commission’s feasibility study reports that this measure, which was supposed to benefit victims of domestic violence, is rarely applied. There does not seem to be a possibility to apply for civil protection orders and the instrument of the barring order is absent as well.
Criminal protection orders can be imposed by an investigative judge, by the public prosecutor or by a court (pre-trial) and there is also an autonomous penalty which can restrain the offender to approach the victim (post-trial). In cases of domestic violence, the court can furthermore decide to separate the offender from the victim (Art. 132(1) CCP). Civil protection is less well organized: only in the context of a divorce (caused by domestic violence) can civil protection orders be imposed, and they are only valid until final judgment. Infringement of the temporary order results in criminal liability for not complying with a court decision. There are no barring orders available.
Whether or not criminal protection orders are present in Luxemburg remains somewhat obscure. Whereas the Modena Group on Stalking (2007) claims that protection orders specific for stalking have been introduced in both civil as criminal law, the European Commission’s feasibility study (2010) refutes this. According to the European Commission’s report there are no criminal protection orders for victims of crime, but Brienen & Hoegen at least mentions the possibility of a conditional suspension of the sentence or a conditional release from prison. The same ambiguity surrounds civil protection orders: the Modena Group on Stalking (2007), Brienen & Hoegen (2000) and Van der Aa et al. (2009) mention the presence of civil protection orders, but according to the European Commission’s feasibility study, there is only the option to file for long-term protection after the domestic violence offender has been expelled from the home as a result from the barring order (which has been introduced in Luxemburg). A violation of the order is criminalized.
While victims previous to the enactment of the Domestic Violence Act were forced to rely on police protection before and after the trial, the courts can now issue a criminal protection order in cases of domestic violence and harassment. Even pre-trial protection orders are mentioned, but only by one source (Modena Group on Stalking 2007) and they do this so ambiguously, that the presence of pre-trial orders should be questioned. Civil protection orders are available, but seem to be restricted to cases of divorce. Malta does not provide for the possibility of barring orders.
In the Netherlands, both pre-trial (conditional release from preventive custody, conditional waiver of the prosecution) as post-trial (conditional suspension of the sentence, conditional release from prison) protection are taken care of. There is now even a bill pending which proposes the introduction of protection orders as an autonomous measure, in addition to or as an alternative to other sanctions. A victim can furthermore apply to the civil court for a protection order, but the infringement of such an order is not a crime. On 1 January 2009, the barring order was introduced.
In Poland, there are both pre-trial and post-trial measures (custodial and suspended sentence) available. As of 8 June 2010 the preventive custody can be suspended on the condition that the offender submits him-or herself to ‘police surveillance’. There are two problems with this construction: 1) stalking is not criminalized in Poland, so the preventive custody could not have been imposed in the first place, and 2) the requirements for a preventive custody are so strict, that even cases of domestic violence would not be able to meet the criteria. The status of civil protection orders is unclear: two sources claim that there are no civil protection orders available (Van der Aa et al. 2009; EPO questionnaire), one source reckons that the introduction of civil protection orders is currently under consideration (European Commission’s Feasibility Study 2010), and one source states that the civil law does have an article which aims to protect ‘personal interests’ and which can form the basis for protection orders (Modena Group on Stalking 2007, violation is not criminalized). There are no barring orders available.
In Portugal there is a wide variety of criminal protection orders in all stages of the procedure. During the pre-trial stage the examining magistrate can order the suspect to refrain from contacting the victim or from visiting certain areas, but anecdotal evidence suggests that magistrates are not inclined to use this option in practice (Brienen and Hoegen 2000, pp. 789-790). Post-trial, criminal protection orders can be imposed as part of a suspended sentence, a probation or a conditional release from prison. Civil protection orders appear to be absent, just like barring orders.
Given that Romania was only included in one study (European Commission’s Feasibility Study 2010), the results could not be verified by the other four sources. This could have serious implications for the reliability of the result. At the time of the European Commission’s study, a bill was proposed which aimed to introduce the possibility of requesting criminal protection orders, an option which was currently unavailable in Romania. Also, there were no relevant civil protection orders for stalking or domestic violence victims, nor were there barring orders.
In Slovakia, all criminal justice agents have options to restrain the offender. The police can impose protection orders, albeit that these are limited in time, and they can evict the offender of domestic violence from the family home for the duration of 48 hours. The public prosecutor can bargain certain conditions in exchange for a waiver of the prosecution and the courts can impose a protection order, albeit not as an autonomous penalty. Civil courts can also issue a temporary injunction, the violation of which is a crime. The 2-days removal of the domestic offender from the family home constitutes a barring order according to the Slovakian experts.
The sources are somewhat unclear, but it seems as if in Slovenia, criminal protection orders are only available before and during the trial (e.g., as a substitute for pre-trial detention). Furthermore, the police may restrain a person if the suspect committed an offence and ‘there are reasons to suspect that he or she will threaten the life, personal safety or freedom of the person with whom he or she was or is in a close relationship’.Footnote 15 If civil protection orders are available, they only apply to cases of domestic violence and they either have a very long processing time (under the Family Violence Act), or they only serve to remove the offender from the family home in cases of ‘ongoing matrimonial disputes between spouses’ (Civil Procedure Act). A violation of the order does not carry a penalty. Barring orders can be imposed.
In Spain there is a wide variety of criminal protection orders available, both pre-trial as post-trial. Especially in cases of domestic and/or gender violence, the (domestic violence) courts have an impressive armamentarium at their disposal. Civil protection, however, seems to be practically absent, and this is also true for the barring order.
In Sweden, under the Restraining Order Act of 1988, the legislator created a separate, administrative procedure which allows victims to apply for a protection order. The decision lies in the hands of the public prosecutor and a protection order can also be granted if there is insufficient evidence that an actual crime has taken place. A violation of the order is criminalized. Apart from this administrative procedure, there are no other venues for victims to obtain a protection order.
United Kingdom (Sometimes Only England and Wales)
Crime victims in the UK can receive protection at all stages of the criminal procedure. Under the Protection from Harassment Act of 1997, a protection order can even be granted after an acquittal of the suspect. The only criterion is whether ‘the court considers it necessary’. Civil protection orders can also be applied for (e.g., non-molestation orders). Whether violations are criminal depends on the type of order granted by the civil court. Barring orders are absent, but they will be introduced shortly.
Overall Assessment of Criminal Protection Orders
Using the broad definition from “The Definition of a Protection Order”, we can conclude that practically each Member state has some form of criminal protection order in place with one (possible) exception: Romania.Footnote 16 It seems that the criminal justice system in this country does not provide any form of victim protection, not yet at least.
As for the countries that do have criminal protection orders in place, these orders come in many shapes and sizes and the level of protection provided by them varies accordingly. In Italy, for instance, criminal protection orders can only be imposed by the police: the police can caution the offender not to contact or come near to the victim anymore. However, the lack of other criminal provisions to protect the victims is heavily criticized. Another difference that can seriously limit the level of protection is the absence of protection during some parts of the criminal procedure. In some Member states, the criminal justice system does not provide protection before there is a final judgment (e.g., Luxemburg, Bulgaria, Czech Republic). In these countries the criminal courts can only impose protection orders after the case has resulted in the conviction of the accused. In other countries, the exact opposite is true: there only pre-trial protection orders can be issued which are valid until the final judgment (e.g., Latvia and Italy). Of course, having both pre-trial as post-trial orders available (e.g., the Netherlands, Belgium) or perhaps an alternative, administrative order which can account for a vast period of time (e.g., Finland) is to be preferred. Another factor that can seriously hamper adequate victim protection is the restriction of criminal protection orders to a limited range of victims only. In Cyprus and possibly also Greece, for example, the orders are available to victims of domestic violence and/or human trafficking, but not to others. As a result, victims who are stalked by people other than their (former) partners cannot benefit from the orders.
For victims of stalking, there is one final obstacle that is probably even more problematic than all the aforementioned barriers to obtaining a criminal restraining order and that is the fact that criminal restraining orders can only be imposed when suspicions of a crime have arisen. Since 15 Member states have not criminalized stalking, victims who are stalked in those jurisdictions are practically left empty-handed. Unless the stalking consists of behavior that is criminalized elsewhere in the Criminal Code, criminal restraining orders will not be available to them.
Overall Assessment of Civil Protection Orders
Civil protection orders are orders issued by civil courts restricting a person from a certain activity with an eye on the protection of the plaintiff. Civil protection orders can be temporary or permanent, but they are usually restricted in time, although often the orders can be extended, for example, because the restrainee violated the orders. The orders can encompass a variety of prohibitions, but they generally hold the prohibition to visit the protected party’s home and/or workplace, to enter a certain area, and/or to initiate contact with the protected party. Most of the time, civil protection orders are sought to provide parties with immediate relief. The civil (interlocutory) procedures often take up little time and the evidence does not have to live up to criminal law standards. Another advantage of civil protection orders is that the victim can act independently of the cooperation of the police, a feature which could be very important in cases of stalking (see “Overall Assessment of Criminal Protection Orders”).
Given these advantages of civil protection orders over criminal protection orders, it is remarkable, that five, but possibly more, Member states do not permit their citizens to apply for a civil protection order.Footnote 17 In comparison, American stalking victims are much better off: all states allow individuals to seek a civil protection order when they are subjected to harassment or stalking by another person. In Europe the absence of civil protection orders in some Member States probably has to do with long-standing legal traditions. Perhaps it is considered a violation of the principle of subsidiarity to limit the freedom of movement of an individual based on nothing more than a civil (interim) lawsuit, with the often lenient rules of evidence that govern these procedures.
Another feature that puts certain victims at a disadvantage is the fact that even in Member states where civil protection orders are available, not all victims have access to them. The Slovakian and Slovenian experts, for example, indicated that they are not sure whether a complaint of stalking would suffice to convince the civil courts of the necessity of a protection order (European Commission’s feasibility study 2010). Furthermore, in Romania, not a single case of stalking has come before a civil court yet. Also in some Member states (for certain in Bulgaria, Hungary, Slovenia and Lithuania, but possibly also in Malta, Italy and Luxemburg) the protection only extends to (former) victims of domestic violence or to (ex) spouses and relatives.Footnote 18 As a result, victims who are stalked by acquaintances, by strangers, or sometimes even by ex-partners with whom they were not married or did not enter into a registered partnership with are deprived of this type of protection. And even when the interim measure is de jure unconnected to the prior relationship of the stalker and his/her victim, it happens that de facto the orders are practically only imposed in domestic violence situations, for example, as a follow-up to the eviction of the offender from the conjugal home.Footnote 19
A final area in which a difference between the civil mechanisms of protecting the victim arises is the manner in which civil protection measures are enforced. Thirteen Member states have criminalized a violation of a civil restraining order, often because it constitutes a ‘contempt of court’ or because it ‘frustrates the execution of a court decision’. Austria, Belgium, the Netherlands, and Slovenia have not criminalized violations.Footnote 20 If a protection order is breached in those countries, the civil courts can levy a fine, or sometimes they can even confine the offender, but this is based on civil law instead of criminal law. Which enforcement mechanism should be preferred is unclear. There is no empirical evidence that supports the one solution over the other and there are things to be said for either. An advantage of criminalization over civil law enforcement, is that sometimes the police can intervene quicker and with more severity than, for example, a bailiff who is charged with the enforcement of breaches of a civil restraining order. On the other hand, the knowledge that a violation could send the violator to prison could be an impediment to victims who do not wish to stigmatize their offenders (e.g., because he is also the father of her children). As a result, they might not want to inform the courts of any violations that may have taken place. Anecdotal evidence, however, suggests that – regardless of whether a violation is criminalized or not – enforcement does not come up to the mark anywhere.
Overall Assessment of the Barring Order
The emergency removal or barring order allows the police or the public prosecution service to remove the offender of domestic violence from the family home for a limited period of time (usually 10 days).Footnote 21 It appears that this measure is quickly gaining popularity within the European Union. Eleven Member States have recently implemented measures that could more or less qualify as a barring order, while some other Member States are in the middle of a legislative procedure to that end.Footnote 22 The first, mostly explorative, studies into the usefulness and effectiveness of the barring order are positive.Footnote 23
Although legislation on the barring order is fully in motion, already striking differences between the Member States which have implemented the measure are becoming visible. To begin with, there are large differences in the duration of the ban. In Slovakia, the police can only order the offender to stay away for a maximum period of 48 hours, whereas in other countries the order typically lasts for 10 days (with a possibility of prolongation). The question is whether a shorter time span provides enough time for the parties to calm down or to enable the victim to apply for longer-lasting protection. Although not extensively dealt with in the previous sections, there also seem to be deviations in the extent to which assistance is offered to both offender and victim. In some Member States the removal from the family home and aid to both offender and victim come as a package deal. Whenever a barring order is imposed, assistance agencies are automatically alerted and assigned to the family. Other Member States, on the other hand, have opted for a less sophisticated approach with a primary focus on short-term safety by removal of the perpetrator, not long-term solutions.