Domestic violence
Legal basis
The "Protection Against Violence Act" Federal Act on the Protection against Domestic Violence (Bundesgesetz zum Schutz vor Gewalt in der Familie) BGBl. No 759/1996] took effect on 1 May 1997. This act created the statutory prerequisites for fast and efficient protection of victims of domestic violence.
Further improvements followed with the amendment of the Security Police Act (Sicherheitspolizeigesetz), BGBl. I No. 146/1999, effective since 1 January 2000, and the Enforcement Code (Exekutionsordnung / EO), BGBl. I No. 31/2003, effective since 1 January 2004.
A comprehensive revision of the legal prerequisites took place with the Second Protection Against Violence Act (Zweites Gewaltschutzgesetz), BGBl. I No. 40/2009, in force since 1 June 2009.
The Protection Against Violence Act authorises the police to evict an endangering person from the domicile of the endangered person and to impose a barring order against the former. The underlying principle, "Whoever hits must leave", allows the endangered individual to remain in her/his familiar surroundings.
At the same time, so-called Violence Protection Centres (Intervention Centres against domestic violence) were set up in all federal states - partly with regional offices - to ensure comprehensive support of endangered persons.
If prolonged protection against the endangering person is required, the endangered person can apply for a court injunction. Depending on the violent or endangering situation, this application can request that the endangering person:
- be banned for a defined period from entering the apartment and its immediate neighbourhood - "Protection against violence in apartments (Schutz vor Gewalt in Wohnungen)", section 382b of the Enforcement Code), and/or
- be banned for a defined period from staying in certain places and from contacting the endangered person - "General protection against violence (Allgemeiner Schutz vor Gewalt)", section 382e of the Enforcement Code), and/or
- refrain from any encroachments on the endangered person’s privacy - "Protection against invasion of privacy (Schutz vor Eingriffen in die Privatsphäre)", section 382g of the Enforcement Code).
An interim injunction can also be issued irrespective of a barring order imposed by the police and vice versa.
Eviction and barring order imposed by the police
Eviction and barring order regulations are laid down in section 38a of the Security Police Act (SPG).
The police are authorised to evict an endangering person from an apartment (house) and its immediate neighbourhood and to forbid him from returning to or entering it. Such measures are contingent on the foreseeable risk of his committing a dangerous assault on a person who lives in this apartment - i.e., an assault on life, health or freedom. For example, previous dangerous assaults give rise to the assumption that further assaults are imminent.
The protection extends to all persons living in the apartment (house) irrespective of kinship and the ownership situation (wife, live-in partner, children, relatives, but also subtenant, co-inhabitants etc.).
It is possible to evict and impose a barring order on any person who is potentially dangerous - i.e. the owner of the apartment as well as an ex-boyfriend who "appears" in the apartment.
In such cases, the police will confiscate the endangering person's keys to the apartment and request him to give an address for the delivery of judicial writs.
The barring order extends to the apartment (house) and its immediate surroundings (e.g. stairway, drive, garden, underground car park). The police will define the protection zone in such a way as to ensure effective protection, and will inform the endangering person about the details (section 38a Para 1 SPG).
The barring order is issued for a period of two weeks, with the police supervising compliance with the order within the first three days. If within these two weeks an application for an interim injunction is filed according to section 382b, the validity of the barring order is extended to four weeks. This gives the court time to decide on the application and ensures constant protection for the endangered person.
For the validity period of the barring order, the endangering person is prohibited from entering the apartment (house) and the defined protection zone, not even with the permission of the endangered person. In the event of non-compliance, the endangering person will be fined up to 360 euro for committing a regulatory offence. If he threatens or even injures the endangered person, he will be prosecuted under criminal law.
Violence Protection Centres/Intervention Centres against Domestic Violence
"Violence Protection Centres and Intervention Centres against Domestic Violence" (Gewaltschutzzentren / Interventionsstellen gegen Gewalt in der Familie) are facilities – provided by law and publicly financed – that specialise in comprehensive support for victims of domestic violence and stalking.
When the police have imposed a barring order, they will forthwith notify the local Violence Protection Centre/Intervention Centre. The Violence Protection Centre/ Intervention Centre will then contact the endangered person, offering active help. Offers include preparing a safety plan, providing legal advice (e.g. with regard to applying for an interim injunction), as well as psychosocial support.
Also in cases of stalking the police can notify the Violence Protection Centre/Intervention Centre, which will actively contact the endangered person. Naturally, persons affected by domestic violence or stalking can also directly contact a Violence Protection Centre/Intervention Centre, i.e. without prior police intervention.
Prolonged protection by means of a court injunction
The relevant regulations are laid down in section 382b, section 382e and section 382g of the Enforcement Code (EO).
If the endangered person needs prolonged protection against the endangering person, she can apply for an interim injunction pursuant to section 382b and/or section 382e EO with the District Court (Bezirksgericht) of the place of residence of the endangered person. Such applications can be submitted without a lawyer.
However, legal advice is important for preparing all documents required by the court to make a decision. Documents include "attestations" (Bescheinigungsmittel) to prove the use of violence, such as medical evidence or photos. Further attestations are testimonies made by the affected woman or by witnesses. Legal advice is also provided by workers at the "Violence Protection Centres/Intervention Centres, women's shelters or women's advice centres". The endangered person is entitled to attend the questioning in court with a trusted third party.
Interim injunction pursuant to section 382b EO "Protection against violence in apartments"
If the endangered person cannot be expected to tolerate any further cohabitation with the endangering person because the latter has physically assaulted the endangered person or threatened her with such assault, or subjects her to considerable psychological strain, she can apply for an interim injunction for the "Protection against violence in apartments (Schutz vor Gewalt in Wohnungen)". A further requirement is that the apartment must be urgently needed by the endangered person.
In such cases, the court can:
- order the endangering person to leave the apartment and its immediate neighbourhood, and
- ban the endangering person from returning to the apartment and its immediate neighbourhood.
Such injunctions can be issued for a maximum of six months. However, in the event of any of the proceedings listed in the Act being instituted within this period, for example divorce proceedings, it is possible to apply for an injunction to cover the period up to the termination of the proceedings.
Interim injunction pursuant to section 382e EO "General protection against violence"
If the endangered person cannot be expected to tolerate any contact with the endangering person because the latter has physically assaulted the endangered person or threatened her with such assault, or seriously harms her psychological health, she can apply for an interim injunction for the "General protection against violence (Allgemeiner Schutz vor Gewalt)". A further requirement is that this application does not conflict with any significant interests of the endangering person. It is not a requirement for the endangered person ever to have lived with the endangering person.
In such cases, the court can:
- ban the endangering person from being in precisely defined places (e.g. workplace of the endangered person, school or kindergarten of the children), and
- order the endangering person to refrain from meeting or contacting the endangered person.
Such injunctions can be issued for a maximum of one year; in the event of non-compliance by the endangering person, their validity can be extended for up to one more year. In the event of a concurrent application for an interim injunction "Protection against violence in apartments" and the opening of any of the related proceedings provided by law (such as divorce proceedings), the interim injunction for the "General protection against violence" can also cover the period up to the termination of the proceedings.
Regardless of the above, it is possible to bring an action to restrain the endangering person from meeting the plaintiff (the endangered person); this action can also extend the validity of the interim injunction until the court has taken its decision.
Interim injunction pursuant to section 382g EO for the "Protection against invasion of privacy" (stalking injunction)
Another option that may be used under certain conditions is an interim injunction for the Protection against invasion of privacy (Schutz vor Eingriffen in die Privatsphäre), the so-called stalking injunction. However, a barring order cannot be extended to four weeks if it was followed only by an application for a stalking injunction.
Further Information (in German)
Further Information (in English)
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