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Regional Seminar
“Legal Measures to Combat Violence against Women,
including Domestic Violence”
The Hague, 21-22 February 2007

Speech by Silvia Thaller
Legal advisor, Penal Legislation Department,
Ministry of Justice, Austria

“Protection and non-molestation orders”

I am grateful for the invitation to be here today. Violence against women, especially domestic violence is a serious issue, an issue of great concern to all of us. As we all have a responsibility to tackle it, a common strategy is important. Although violence against women is an old phenomenon, still state reactions to it, even in the European Union, vary strongly. In some countries a clear and comprehensive strategy has not yet been achieved. So, while new standards emerge, the gap widens to those countries, which have not yet taken sufficient legislative and organisational steps.

During this first working session this morning we will have the opportunity to learn more about experiences with different models of protection and non-molestation orders made in Germany and Ireland as well as the reform project in the Netherlands. But before going into a detailed analysis of these systems by the subsequent presentations I would like to point out some necessary prerequisites which all models should consider, as well as some of their possible benefits and potential drawbacks.

In preparation of the European Crime Prevention Network (EUCPN)-workshop on domestic violence held in Vienna in May last year, a comparative study was conducted, which made the different approaches in the evaluated European countries clear. It also revealed that there can be various ways to cope with domestic violence and there is not just one and only solution to the problem. But still, how effective a system is depends in the end on some crucial decisions a legislator has to make. Therefore evaluations like the one mentioned before, but also seminars like ours today are vital, to discuss possible strategies in order to find a best practise or maybe even different best practises in this field.

First of all, let me name the most important claim to all models of protection and non-molestation orders: No matter which policy a state adopts, in any case it should make unmistakably clear that domestic violence is a matter of public concern.

Acts of violence perpetrated in the domestic sphere should no longer be defined and treated as a private matter, but as a cause for public concern. They are a public security matter.
Therefore a first rapid intervention is necessary, determined action which is a signal that there is zero tolerance for violent behaviour against women.

With regard to this first intervention the police have to be a key actor in helping to stop immanent danger, but also to end the violent relationship in the long run. The police shall be empowered to intervene and to remove in their own capacity the presumed offender from the household of the victim immediately. The police should order the offender to keep away, even when it is the common household.

Therefore the role of the police needs to be redefined. Intervention that just seeks to de-escalate the situation is not only entirely insufficient with regard to prevention, but also emits the wrong signal. A change in attitude is mandatory. The police should no longer perceive domestic violence as a private “conflict”, but as grounds for the victim to receive protection from state agencies. The role of the police can no longer be just settling family disputes, but the aim of the police intervention should be on the one hand to make the offender responsible and on the other hand to protect the victim.

Assigning the police this new role inevitably requires accompanying measures. Indispensably, the brief of the police has to be updated and training measures made accessible.

A shift in paradigm is necessary and already observable in some countries. But still it is striking that government action in this field mostly started not more than one decade or even only some years ago.

In countries like Austria, the Czech Republic, Denmark, Finland, some of the German Länder legislation has been introduced empowering the police to expel a person from premises on the grounds that his/her presence would pose a risk to another person living there. These provisions have not replaced but complemented the powers of the police to arrest a suspect, powers which in this group of countries are by far more restricted than in countries with common-law traditions. In Luxembourg and Sweden for example the power of the police to expel the offender or suspect depends on the consent of the public prosecutor. Again other legislations, such as the French one, base the expulsion order on a court decision. In Ireland (as well as in the UK) the first measure, carried out by the police, is not the expulsion but the arrest of the offender. A last group of countries including for example Estonia, Greece, Hungary, Poland and Portugal reported in the comparative study that there is no expulsion order stipulated by legislation. In the Netherlands reform is under way.

Eventually, whether the expulsion order is decided only by the police, the public prosecutor or a court is both a matter of principle (an aspect of division of powers) and of practicability. No matter which policy a state adopts the important point is that in any case a fast unbureaucratic intervention is guaranteed to the victim.

But let me stress one thing in this context: Anyhow, never should police powers when called to a scene of domestic violence depend on the victim’s consent for taking action against the assailant.

Especially, during the first phase, the intervention of the police must not depend on the wish of the woman. Any other solution would mean asking too much from a woman at risk who is under psychological pressure due to a violent relationship. In an emergency, the intervention must even take place against her will.

The police should ask the offender to leave immediately and stay off the premises where the victim lives which normally is also the home of the offender. It must be the perpetrator who has to leave the house, not the victim. Not the woman should be the one who has to take refuge to a friend’s house or a shelter for battered women. This is not only a practical matter, but a very clear psychological signal to the perpetrator and to the victim in this situation.

This principle aims at conveying the message of the severity of domestic violence and the perpetrator’s responsibility, a message of tremendous importance for

    - bringing about a change in the perpetrator’s attitude and behaviour,
    - helping the victim to cope with trauma of violence and feelings of shame and guilt,
    - society’s approach to violence.

In this stage it is vital that the police make the victim as well as the perpetrator aware of the fact that the police order is enacted ex officio, not because the victim wishes so.

This first phase of intervention is very demanding for all persons involved. We all know that it is very difficult to empower, to strengthen the position of a woman faced with violence. The essential question therefore is which approach reflects on the situation of the victim the best?

Austrian experience has shown that a dual phase model is indispensable. The reaction of the state has to be structured in two phases.

According to the Austrian Police Act, which came into force 1997, law enforcement officers are authorized to expel the assailant from the home in which the potential victim lives and from its immediate surroundings as well as prohibit him from returning to these premises, if it can be assumed on the basis of certain facts that an assault on the physical safety of an individual is imminent. During this first phase, the intervention does not depend on the wish of the women. But this first patronising phase is strictly limited. The ban expires after the tenth day of its issue.

Afterwards control over the further process of change passes clearly and unconditionally to the woman at risk. Within these first 10 days she can apply for an interim injunction at the family court. In this case the prohibition order expires when the court decision has been served on the respondent. In any event the police ban will expire after the twentieth day of its issue.

At this second stage the initiative of the victim is decisive. She can choose whether she wants to prolong the effectiveness of the ban through an interim injunction or not.
In this context the so called intervention centres, NGO´s specialised in the field of victim support – tomorrow we will have the opportunity to here more from Rosa Logar, the director of the intervention centre Vienna – play a crucial role. These service centres help women after police interventions in their decision whether to apply for a interim injunction at the court or not. By supporting the women psychologically and through legal counselling they can help to end violent relationships in the long run.

Summarizing it up the Austrian model rests on three pillars: Eviction and barring orders imposed by the police; longer term protection by means of a temporary injunction decreed by the family court and last but not least free counselling and support by the intervention centres.
This short look at the Austrian system shows that the victim support organisations are an indispensable link between the state institutions and the victim. Their importance should never be neglected by the state: Effective access to victim support is a major cornerstone for a functioning system to fight violence: Therefore the state has to contribute in the support of these organisations. Again, in Austria, there is a network of victim support organisations. We have 9 Intervention Centres all over the country which are financed by the Ministry of the Interior and the Ministry of Health and for Women’s Affairs.

Special provisions state that law enforcement authorities are obliged to inform the Intervention Centres about every prohibition order issued by the police. With that information, Intervention Centres can address proactively the victim and offer her legal advice and psychological support. Furthermore, law enforcement officers are by law required to advise the woman at risk on suitable victim protection facilities like the Intervention Centres. This obligation constitutes a core element of the Austrian reform project. It is based on the assumption that in incidents of relational violence the state must not wait for the victim to find her way to a counselling facility, but that there is an obligation to help the woman actively – in form of supportive social work.

But not only in Austria, in many other European countries networks of victim support organisations already exist. Let me just name Denmark, Estonia, France, Germany, Hungary, Ireland, Luxemburg, the Netherlands and Sweden. In these countries state authorities - the police, courts – also cooperate with the victim support organisations and there is a legal basis for them being financed by the state. Again in other countries there are mixed systems of victim support, including both state institutions/municipalities and NGOs, and in others only NGOs are active in this field. The financing of the NGOs’ activities is not always guaranteed, but they can apply for financial support from the state. Still the comparative study revealed that the kind of support offered to victims by these organisations varies a lot: In some countries intervention centres exist providing victims of domestic violence with psychological, social and law services, in others only telephone help-lines were established by now. So there are big differences and a big potential to strengthen the role of victim support organisations far more.

Systematic cooperation between the police or state institutions and victim support organisations is a key element in the fight against domestic violence. A legal basis for the exchange of information is necessary. Only this way a close co-operation between the police authorities and private victim support facilities is possible. Law enforcement authorities should be empowered by law to disclose personal data of cases of domestic violence to suited victim protection facilities to the extent that this is necessary to protect individuals at risk. They shall be supplied with information on the intervention procedure and the behaviour of the perpetrator, which are of significance for the work of the victim support facility.

Strikingly on the European level is that, even countries that do not hesitate to give the police strong powers to intervene are remarkably restrictive when it comes to the communication of personal data from the police to victim support agencies. In this respect the more liberal Austrian position stands as exceptional. The question arises whether the prioritisation of protecting the suspect’s personal data could limit the effectiveness of victim support.

A violent relationship can not be ended by police intervention alone; such an intervention can not be an appropriate sanction, neither. It is only one step and there is urgent need for follow-up cooperation with other institutions – such as family courts, the youth welfare offices, criminal courts and private institutions.

The common point of departure for all effective prevention programmes is that no institution can be successful if it operates in isolation. A holistic and cooperative approach is necessary.

And therefore gradually, a shared understanding has to be developed.