Last updated May 2010
Emergency or ex parte Order for Protection Remedy
Legislation should create an emergency or ex parte order for protection as a vital aspect of a domestic or dowry-related violence law. An ex parte order for protection is based upon the assumption that the complainant/survivor is in danger of immediate harm and must be protected by the state. The safety of a complainant/survivor and her children should be the most urgent priority of the legislation.
For example, the law of Sierra Leone states that:
“(1) Where an application is made ex parte to the court for a protection order, the court shall issue an interim protection order if it considers the order to be in the best interest of the applicant.
(2) In determining whether it is in the best interest of the applicant to issue an interim protection order, the court shall take into account-
(a) whether there is a risk of harm to the applicant or a relation or friend of the applicant if the order is not made immediately…” Part III 12
Promising practice: The law of Namibia requires a court to issue an ex parte order if the court finds that domestic violence has been committed. Section 7 (1)
Legislation should authorize the issuance of an emergency or ex parte order for protection based upon a court or police order, but without the necessity for a court hearing. The complainant/survivor should be able to approach the court on her own to apply for an order for protection.
Legislation should state that the statement of the complainant/survivor is sufficient for the court to grant the emergency order for protection. No other evidence should be necessary.
Promising practice: Pakistan’s draft Domestic Violence (Prevention and Protection) Act, 2009 authorizes a magistrate to issue an “interim protection order” based on the petitioner’s application, where it shows “the accused is committing, or has committed an act of domestic violence or that there is a likelihood that the accused may commit an act of domestic violence.” The judge may order a protection order, residence order, custody order or monetary relief under Articles 8-10. Lawmakers should ensure that the scope of an order for protection law encompasses dowry-related violence.
The issuance of the emergency order for protection should occur immediately upon application to support the goal of victim safety. For example, the law of Bulgaria, Ch. 2, S.18, states that:
Where the application or request contains data concerning a direct and impending threat to life or health of the victim, the regional court, sitting ex parte and in camera, shall issue an emergency protection order within 24 hours as from receipt of the application or request. Ch. 2, S. 18 (1)
If the legislation allows other family members or relevant law enforcement officials or other professionals, such as social service professionals, to apply for emergency or ex parte orders for protection on behalf of a complainant/survivor who is competent, legislation should require that the complainant/survivor be consulted. See: the Addendum to Administrative Procedure Code of Georgia, Article 21.12. In some cases, orders for protection issued without the victim’s consent present risks to the victim. Women who are victims of violence are most often the best judges of the dangers presented to them by violent partners. (Domestic Violence, Explore the Issue, Victim Protection Support and Assistance, Safety Planning) Therefore, it is not advisable to exclude them from the decision to apply for protection measures. This is particularly true since research shows that one of the most dangerous times for many women is when they separate from their abusers. A 2003 study described by a leading domestic violence agency in the United States, the Family Violence Prevention Fund confirmed that "[s]eparating from an abusive partner after having lived with him, leaving the home she shares with an abusive partner or asking her abusive partner to leave the home they share were all factors that put a woman at 'higher risk' of becoming a victim of homicide." It is very important for an adult victim of domestic violence to make her own decision to leave a relationship because she is in the best position to assess the potential danger.
The legislation should state that violation of the emergency or ex parte order for protection is a crime. See: the Elimination of Domestic Violence, Protection of and Support to Its Victims (2006) of Georgia, (hereinafter law of Georgia) Article 10: “Failure to comply with the conditions prescribed by protective and restrictive orders shall lead to criminal responsibility of the abuser.”
The legislation should state that it is the duty of the police and the prosecutor to enforce the emergency or ex parte order for protection. See: UN Handbook, 3.10.3; law of Philippines, Sec. 30; and Family Violence: A Model State Code, 305, 306. The Punjab Prevention of Domestic Violence Bill 2003 confers responsibility for enforcement on the Station House Officer of the local police station within 24 hours of the order’s issuance (Article 11).
Legislation should state that the authorities may not remove a survivor from the home against her will. For example, Protection Officers under Pakistan’s draft Domestic Violence (Prevention and Protection) Act, 2009 may “if necessary, and with the consent of the aggrieved person, assist the aggrieved person in relocating to a safer place acceptable to the aggrieved person, which
may include the house of any relative or family friend or other safe place, if any,
established by a service provider” (Article 15(c)) (emphasis added).
CASE STUDY: India’s Protection of Women from Domestic Violence Act, 2005 states that “[n]otwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same” (Article 17). Lawmakers should use similarly strong language granting the right to reside in the marital home to the victim.
CASE STUDY: Where shelters are lacking, some governments have incarcerated victims in prisons to protect them from violence. For example, there are no shelters available for victims of “honour” crimes, another form of violence against women and girls, in Jordan, and state authorities often place them in involuntary detention in the Jweideh Correctional and Rehabilitation Center. See: U.S. Department of State Country Human Rights Report: Jordan (2008); Human Rights Watch, Honoring the Killers: Justice Denied for “Honor” Crimes in Jordan, 2004, pp. 24-27. Drafters should repeal any laws or orders that allow the practice of detaining women victims of violence and provide adequate resources to provide shelters, and arrest the perpetrators, rather than the victims. See: “Honour” Crimes.
The emergency or ex parte order should remain in effect until the longer-term protective order comes into effect after a full court hearing. Legislation should provide that upon the request of the respondent, a hearing may be promptly scheduled to review the application and to make a determination whether the order should remain in effect. For example, Pakistan’s Domestic Violence (Prevention and Protection) Act, 2009 requires a hearing within 3 days of the date of application (Article 6). If, however, the court orders the respondent to undergo counseling, the court may schedule the hearing within a 30-day timeframe (Article 6). See: Section on Batterers Treatment Programs. Where counseling is mandated and so delays a hearing, legislation should direct that the court still issue an interim—or ex parte—protection order. Legislation should expressly provide that an interim order is to remain in effect until a hearing and decision on the application.
Contents of Emergency or ex parte Orders for Protection
The emergency or ex parte order should restrain the violent offender from causing further violence to the survivor, her relatives or other relevant persons.
The emergency or ex parte order should provide that the police or courts may order the violent offender and his relatives, if necessary, to stay away from the complainant/survivor, her children and her parents (and other people if appropriate) and the places that they frequent.
The emergency or ex parte order should prohibit the violent offender from contacting the survivor and her parents or from arranging for a third party, including his relatives, to do so.
The emergency or ex parte order should require the violent offender to vacate the family home, without ruling on the ownership of property, and to provide the survivor with the use of a means of transportation, financial assistance, counseling, shelter fees, mortgage, rent, insurance, alimony and child support.
The order should prohibit the violent offender from alienating or disposing of dowry and any assets and property enjoyed, used or held by the offender and/or the survivor.
The emergency or ex parte order should prohibit the husband and his relatives from making any explicit or implicit dowry demands of the survivor or her parents.
The emergency or ex parte order should prohibit the violent offender and his relatives, if necessary, from purchasing, using or possessing a firearm, acid or any such weapon specified by the court.
Legislation should provide that emergency or ex parte orders for protection may be issued in both criminal and civil proceedings.
The UN Model Framework, IV, includes these specific provisions for emergency or ex parte orders for protection:
29. The ex parte temporary restraining order may:
(i) Compel the offender to vacate the family home;
(ii) Regulate the offender's access to dependent children;
(iii) Restrain the offender from contacting the victim at work or other places frequented by the victim;
(iv) Compel the offender to pay the victim's medical bills;
(v) Restrict the unilateral disposal of joint assets;
(vi) Inform the victim and the offender that if the offender violates the restraining order, he may be arrested and criminal charges brought against him;
(vii) Inform the victim that, notwithstanding the use of a restraining order under domestic violence legislation, she can request the prosecutor to file a criminal complaint against the offender;
(viii) Inform the victim that, notwithstanding the use of a restraining order under domestic violence legislation and application for criminal prosecution, she can initiate a civil process and sue for divorce, separation, damages or compensation…
32. Non-compliance with an ex parte restraining order shall result in prosecution for contempt of court proceedings, a fine and imprisonment.
Promising Practice: India’s domestic violence law authorizes the magistrate to issue a protection order that also prohibits the perpetrator from “alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate” (Article 18(e)).
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