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Domestic Violence Cases: Legal Representation in Germany

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The Legal Basis for Protection Against Domestic Violence

The Protection Against Violence Act (§§1-4 GewSchG) is a preventive civil law measure to protect against violence and stalking. The regulations contained therein are intended to protect the victim from violent assaults by the perpetrator. It covers not only physical assaults, but also psychological influences such as stalking or telephone harassment (also via WhatsApp, Facebook and other modern forms of communication). Since it is a matter of preventive protection, one act of threatened violence is sufficient to initiate the violence protection proceedings, § 1.2 Protection Against Violence Act.

After an application has been made, the competent court can issue various orders, for example it can issue a prohibition according to § 1 (1) Protection Against Violence Act with regard to

  • entering the applicant’s home,
  • residence within a certain radius of the applicant’s home,
  • visiting a place where the applicant regularly stays (e.g. the workplace),
  • contact with the applicant (in person, in writing, by telephone, by third parties, etc.).

In addition, according to § 2 Protection Against Violence Act, an application can also be made for the shared flat to be left for sole use, in the case of a case of an offence within the meaning of § 1 Protection Against Violence Act.


Application Requirements for a Temporary Injunction

In order to initiate proceedings, the facts of the case, i.e. the violent conduct, must be affirmed in lieu of an oath. This can be done at the family court itself or with a lawyer. Previously made police reports or medically documented injuries can be presented for more detailed credibility. In addition, witnesses can already be named as a precaution. As soon as the application has been filed, the court decision is made in summary proceedings.

There is a two-week application period since the incident (this is justified by the urgency of the matter). The duration of the temporary injunction is also limited, usually to 6 months. However, an extension can be applied for in the event of further infringements, § 1 (1) Protection Against Violence Act.


What is Meant by Credibility in Domestic Violence Cases?

Credibility, § 51.1 FamFG, means that the applicant does not have to provide evidence. It is sufficient to prove it on the balance of probability. This can be done in various ways, in most cases the submission of an affidavit is used. This can be supported by the submission of medical certificates, police reports or testimonies of third parties. A credibility statement can be shaken by means of the so-called counter-belief statement, i.e. substantiated objections are raised and made credible.


What Forms of Evidence are Admissible and which Court has Jurisdiction?

The court can make use of various aids. In the case of the procedure for the protection against violence, the usual means of evidence applicable to civil procedure law (ZPO) are also appropriate as shown under § 31 (1) FamFG.

Possible means of evidence would therefore be

  • affirmation in lieu of oath,
  • expert opinion,
  • judicial inspection,
  • (present) witnesses,
  • certificates (e.g. medical certificates).

According to § 111 (6) FamFG, the family courts have jurisdiction for the protection against violence proceedings.


How long does it take until I get Judicial Protection from Domestic Violence?

According to § 214 (1) FamFG, the court can issue a temporary injunction to make a provisional arrangement according to §§ 1 and 2 Protection Against Violence Act– for the time being without a legal hearing of the respondent. In very many cases, the quickly issued temporary injunction (within a few days) already creates the necessary pacification, so that the application is then not pursued further by the victim. The prerequisite for the issuing of such legal protection is determined by § 49 (1) FamFG.

Such a measure may be taken only if:

  • there is an urgent need for immediate action, and
  • this is justified (according to the rules governing the legal relationship).

In view of the usually very violent character, § 214.1 FamFG provides that there is an urgent need for immediate action by the court as a rule if an act has been committed under § 1 Protection Against Violence Act or if an act is to be expected to be committed on the basis of concrete circumstances. In addition, the applicant must also substantiate the conditions for the issuance of a temporary injunction, and provide appropriate evidence to avail of it.


Is it Necessary to hold an Oral Hearing for a Temporary Injunction in Domestic Violence Cases?

The issuance of a temporary injunction in domestic violence protection proceedings is in many cases, due to the urgency, carried out without an oral hearing. The defendant can request that oral proceedings be held, which can lead to a new decision. The oral hearing gives the defendant the opportunity to describe the facts of the case from their point of view.


What happens if the Interim Injunction is Violated?

If a measure issued in accordance with the Protection Against Violence Act is violated, a prison sentence of up to one year or a fine in accordance with § 4 Protection Against Violence Act is threatened. The punishability remains unaffected by other penal provisions (such as manslaughter, murder, bodily injury, etc.).

Please note: in addition to the violence protection proceedings, the possibility of taking criminal action against the defendant is also available.


Domestic Violence Cases: How do the Oral Proceedings proceed?

In order for a hearing to take place, a request must be made by the defendant. The court will then set an in-camera case (a private case which is not open to the public). Witnesses are not summoned; only those persons are heard who appear at the hearing (present witnesses). It is therefore advisable to ask witnesses to appear in person.

At the oral hearing, the parties talk about the incident, in particular, the defendant has the opportunity to describe the facts from their point of view. The hearing usually ends with a settlement in which the parties involved agree on a mutual contact ban. If no settlement is reached, the court decides by order.

 


What Legal Remedies are Available against a Domestic Violence Protection Order?

According to §§ 936, 924 I Code of Civil Procedure the defendant can file an objection against the issued temporary injunction. The objection is not subject to a time limit. However, in the case of late action an objection of forfeiture can be raised against the defendant. The court then decides on the legality of the interim injunction under § 925 Code of Civil Procedure.

Please note: The execution of the interim injunction is not inhibited by the objection, § 924 III 1 Code of Civil Procedure. Exceptionally, a suspension of the execution of the temporary injunction can be considered according to §§ 924 III 2, 707 Code of Civil Procedure, for example if the objection is considered by the court to be obviously justified.


EU-wide Protection against Domestic Violence

Since 11.01.2015, prohibition of contact can be recognised throughout the EU, thus ensuring cross-border protection against stalking. The recognition of the protection against violence works by means of a form which is available at the court, which also issued the one-part order. This form is to be filled in by the court. Especially in border areas, this can enable effective criminal prosecution and civil action.


Costs of Domestic Violence Cases: How are they Decided?

Decisions regarding costs are based on § 81 FamFG. In most cases, the procedural costs are imposed on the respondent on the basis of an equity assessment (OLG Brandenburg, 5th Family Senate, decision of 19.02.2013 – 3 UF 43/12).

 

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