07.12.2023

Protection order - between victim protection and abuse of process

The protection order was conceived by the legislator as a legal means to protect the victim of domestic violence from a serious and imminent danger that the aggressor represents or may represent to the life, physical and mental integrity or liberty of a family member.

The types of violence referred to in Law No 217/2003 on preventing and combating domestic violence are diverse and include not only physical aggression (the classic case), but also verbal violence, psychological violence, sexual, economic, social or cyber violence, which is likely to cause the victim to feel fear, threat, shame, humiliation or humiliation, with the aim of silencing her. Thus, in one case, a private investigation report documenting the wife's infidelity with an office colleague was described by the court as a means of harassment, as the report had been disseminated by the cheated husband to the victim's employer and colleagues.

The protection order is a temporary and exceptional measure by which the courts restrict by court order the fundamental rights of the person accused of the assault, namely the right to property, the right to freedom of movement, the right to family life, and may also require the victim to wear an electronic device to warn the victim of the approach of the assailant.

In practice, however, this legal means of protection for genuine victims of domestic violence has become trivialized by applications for a protection order whenever family disputes escalate and one partner feels the need to assuage his or her sensitivities by forcibly removing the troublesome husband from the domestic landscape.

It is not uncommon for family law disputes such as divorce, custody, child visitation or even international child abduction disputes to be 'spiced up' with a request for a protection order in order to pre-constitute a procedural advantage or to avoid the enforcement of obligations imposed on the alleged victims by a court order.

The classic scenario is that of the victim provoking the aggressor, who is also unwittingly audio- and video-recorded, or making undated photo-taped pictures in which the victim appears with her hair in disarray, her ears red, her arms pinched or her fingers scratched, claiming to have been the victim of domestic violence. Minors are also included in this scenario, the objective being to prevent the child's program of personal ties with the parent from whom he or she has been separated from from being realized.

It is for this reason that the courts consider these applications very carefully, by reference to the concrete and objective evidence presented by the victim. As has also been held in case law, "the issuance of a protection order implies the brutal intervention of the authorities (the court and other state authorities) in the right to privacy of persons, by limiting/restricting certain rights to the extreme, up to their temporary suppression, which can only take place in absolutely exceptional circumstances, when in the absence of intervention it is possible to perceive the existence of a state of danger to the normal course of the normal life of the person/persons assaulted, generated by the violence of the aggressor manifested in the various ways described by law"[1].

Along the same lines, the courts hearing applications for the issuance of a protection order have held that "the issuance of a protection order entails restrictions on the rights and freedoms of the person, so that it can be instituted only where there is unequivocal proof of acts of violence of a certain gravity against the victim, likely to place him in imminent danger, making it necessary to remove the aggressor from the victim, so as not to endanger his life, physical and mental integrity or liberty."

Thus, the prerequisite for the issuing of a protection order, which is essentially an exceptional measure, is the existence of a state of danger, the applicant being required to prove that a number of conditions of admissibility have been met, including the serious, present and imminent danger to which his life, health or physical and mental integrity would be exposed if the police or the court did not order the measure restricting the rights and freedoms of the person accused of the assault.

As has also been held in the case-law of the national courts, "the protection order, given its rights-restrictive nature, can only be taken on the basis of solid evidence showing a state of danger and in order to remove a state of danger".

Thus, in order for a protection order to be issued, the conditions of the existence of acts of violence, regardless of the form in which they manifest themselves, and of the state of danger generated by a genuine conflict relationship, which must meet the requirement of actuality, must be met ."[2]

The issuance of a protection order must have a strong preventive purpose, namely to avoid possible altercations between the parties to a conflict, which could have harmful consequences, without, however, becoming a vehicle for abuse of process that would downgrade the protection of the legislature and insult the real victims of domestic violence.

[1] See Judecatoria Buzău - S. civ. nr. 13/2022

[2] J. Galați - S.civ. nr. 1029/2016