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Federal Laws of the Republic of Austria on protection against domestic violence (1997, as amended 2000) (excerpts related to Violence against Women and Domestic Violence) (English)
Federal Laws on protection against domestic violence
The following compilation of legislative texts contains the text of the Gewaltschutzgesetz (Law on protection against violence, Bundesgesetzblatt (Federal Law Gazette - BGBI.) 759), which is in force since 1 May 1997, and the amendments thereto in the Sicherheitspolizeigesetz (Law on the security police - SPG), which entered into force on 1 January 2000.
The relevant Federal Law Gazettes are:
759 th Federal Law: Bundesgesetz zum Schutz vor Gewalt in der Familie (Federal Law on protection against domestic violence - GeSchG) (Nationalrat: Legislative term XX, Government bill 252, Committee report 407, p. 47. Bundesrat: 5300, Committee report 5311, p. 619.) Federal Law Gazette for the Republic of Austria, issued on 30 December 1996.
146 th Federal Law: Sicherheitspolizeigesetz-Novelle (Law amending the Law on the security police), 1999 (Nationalrat: Legislative term XX, Government bill 1479, Committee report 2023, p. 182. Bundesrat: 6016, Committee report 6025, p. 657.) Issued on 13 August 1999, Part I
Article I
Amendments to the Allgemeines Bürgerliches Gesetzbuch (General Civil Code)
The General Civil Code, JGS No 946, last amended by Federal Law BGBI. No 25/1995, shall be amended as follows:
1. The following sentence shall be inserted into § 215(1):
'The youth welfare institution, as the agent of the minor, may apply for an interlocutory injunction under § 382b of the Exekutionsordnung (Rules on execution - EO) and its execution under § 382d EO, if the other legal representative has not made a necessary application immediately; § 212(4) shall applymutatis mutandis.'
2. § 1328 of the General Civil Code, with its heading, shall read as follows:
'1(a) on sexual self-determination
§ 1328. If, through a criminal offence or otherwise through deceit, threat or exploitation of a relationship of dependence or authority, a person uses someone for sexual intercourse or otherwise for sexual acts, they shall make reparation to that person for damage suffered and loss of profit and pay them adequate compensation for injury suffered.'
Article II
Amendments to the Exekutionsordnung (Rules on execution)
The Rules on execution, RGBI. No 79/1896, last amended by Federal Law BGBI. No519/1995, shall be amended as follows:
1. § 26(2)(1) shall read:
'The enforcement agents may, in order to remove an obstruction encountered by them, directly request assistance from the public law enforcement service agents available to the law enforcement authorities.'
2. The following sentence shall be added to § 55(1):
'Any party may request that, in addition to their authorised representative, a person in their confidence be permitted to attend their oral examination. The person in their confidence may be refused attendance if there are grounds for concern that attendance will be used to disrupt the examination or to hamper the establishment of the facts.'
3. In § 177(3) the words'law enforcement agents'shall be replaced by the words'public law enforcement service agents available to the law enforcement authorities'.
4. § 382(1)(8)(B) and (2) are hereby repealed.
5. After § 382a, the following provisions shall be inserted:
'Protection against domestic violence
§ 382b.(1) If a person makes further cohabitation unreasonable for a close relative by virtue of a physical attack, a threat of such an attack or conduct that seriously affects the mental health of that relative, the court shall, upon application by the relative,
1. order that person to leave the dwelling and its immediate surroundings and
2. prohibit return to the dwelling and its immediate surroundings,
if the dwelling serves the purpose of satisfying the urgent housing needs of the applicant.
(2) If a person makes further meetings unreasonable for a close relative by virtue of a physical attack, a threat of such an attack or conduct that seriously affects the mental health of that relative, the court shall, upon application by the relative,
1. prohibit residence at certain designated locations and
2. order that meetings and contact with the applicant be avoided,
provided this does not run counter to the substantial interests of the respondent.
(3) Close relatives within the meaning of paragraphs 1 and 2 shall mean:
1. a) spouses and cohabiting partners,
b) brothers and sisters and relatives in the direct line, including adopted and foster children and adoptive and foster parents,
c) spouses and cohabiting partners of the persons referred to under b.
2. a) Relatives in the direct line, including adopted and foster children and adoptive and foster parents, of spouses or cohabiting partners and
b) brothers and sisters of spouses or cohabiting partners
if they live in a common household with the respondent or have done so in the three months before the application was made.
(4) An interlocutory injunction under paragraph 1 or 2 may be adopted irrespective of whether the parties continue to live in a common household and without being linked to proceedings for divorce, annulment or declaration of nullity of marriage, proceedings for the distribution of matrimonial property and matrimonial savings, or proceedings on the clarification of the right to use the dwelling; however, where such proceedings are not pending, the period for which such an injunction is adopted may not exceed a total of three months.
Procedure and order
§ 382c.(1) The respondent shall not be heard prior to the adoption of the interlocutory injunction under § 382b(1) in particular where there is an immediate threat of further danger from the respondent. This may be inferred in particular from a report by the law enforcement authorities, which the court shall obtain of its own motion; the law enforcement authorities are required to transmit such reports to the courts without delay. If, however, the application is made without undue delay after an order prohibiting return (§ 38a(7) SPG), the order shall be served on the respondent without delay.
(2) Unless otherwise requested by the applicant, the order to leave the dwelling shall be served on the respondent by the enforcement agent upon execution. The applicant shall be notified of that date.
(3) The content of the court order by which an application for adoption of an interlocutory injunction under § 382b is decided and of any court order by which the interlocutory injunction is lifted shall also be notified without delay
1. in the local jurisdiction of a Federal Police Directorate, to that Directorate, otherwise to the district administrative authority having local jurisdiction in its capacity as a law enforcement authority,
2. if one of the parties is a minor, also to the youth welfare institution having local jurisdiction.
(4) If the respondent has notified public law enforcement service agents of an address for service on the occasion of an exclusion under § 38a(3) SPG, that address shall be regarded as the address for service for the judicial proceedings. If, despite being warned of the legal consequences, the respondent fails to give such notification, service may be effected in the proceedings for the interlocutory injunction by means of deposit without prior attempts at service (§§ 8 and 23 of the Zustellgesetz (Law on service)) until the court is notified of an address for service.
Execution.
§ 382d.(1) Interlocutory injunctions under § 382b(1) shall be executed immediatelyex officioor upon application.
(2) The enforcement agent shall exclude the respondent from the dwelling and remove from him all keys to the dwelling and deposit them with the court. He shall give the respondent the opportunity to take with him his personal valuables and documents and any property that serves his exclusive personal use or the exercise of his occupation.
(3) If the respondent is not present at the time of execution, the enforcement agent shall, upon his request and within two days, give him the opportunity to remove from the dwelling his property within the meaning of paragraph 2. The enforcement agent shall inform the respondent of this right by leaving a notice on the doors of the dwelling.
(4) The court may also order the law enforcement authorities to execute an interlocutory injunction under § 382b(1) through the public law enforcement service agents available to them. In such a case, those agents, as enforcement agents, are required, upon any request by the applicant, to establish a situation consistent with an interlocutory injunction under § 382b(1) through direct execution and coercive force and to report to the court that adopted the interlocutory injunction.'
6. § 387(3) shall be amended as follows:
a) After the words'§ 382(1)(8)'the words'or under § 382b'shall be inserted.
b) The following sentence shall be added:
'If only an interlocutory injunction under § 382b(2) is applied for, jurisdiction shall lie with the district court in whose administrative district the applicant has his or her customary residence'.
7. In § 390(4) the words'§ 382(1)(8)(A) or § 382a'shall be replaced by the words'§ 382(1)(8)(a), § 382a or § 382b'.
8. In § 393(2) the words'§ 382(1)(8)(b) and (2)'shall be replaced by the words'§ 382b'.
Article III
Amendments to the Sicherheitspolizeigesetz (Law on the security police)
The Law on the security police, BGBI. No 566/1991, last amended by Federal Law BGBI. No 201/1996, shall be amended as follows:
1. After § 38 the following § 39a [sic], with its heading, shall be inserted:
'Exclusion and prohibition on entry in the event of domestic violence.
§ 38a.(1) If, on the basis of certain facts, in particular as a result of a previous dangerous attack, it may be assumed that a dangerous attack upon life, health or freedom is imminent, the public law enforcement service agents shall be authorised to exclude a person from whom the danger emanates from a dwelling in which a vulnerable person lives and its immediate surroundings. They shall inform him of the physical area to which the exclusion relates; that area shall be determined having regard to the requirements of effective preventive protection.
(2) Subject to the conditions set out in paragraph 1, the public law enforcement service agents shall be authorised to prohibit a person from entering an area defined pursuant to paragraph 1; however, the use of coercive force in order to enforce this prohibition on entry is not permitted. In the case of a prohibition on entry into the respondent's own dwelling, particular care shall be taken to ensure that such encroachment on the privacy of the person concerned is consistent with the principle of proportionality (§ 29). The public law enforcement service agents shall be authorised to remove from the person concerned all keys to the dwelling that are in his possession; they are required to give him the opportunity to take urgently needed personal items and to find out what possibilities of accommodation are available. In so far as it is necessary for the person concerned to visit the dwelling which he is prohibited from entering, he may do so only in the presence of a public law enforcement service agent.
(3) In the case of a prohibition on entry, the public law enforcement service agents are required to request from the person concerned notification of an address for service with a view to service of the suspension of the prohibition on entry or of an interlocutory injunction under § 382b EO. If he fails to do so, service of such documents may be effected by deposit without prior attempts at service until such notification is made; the person concerned shall be notified thereof.
(4) The public law enforcement service agents are further required to inform the vulnerable person of the possibility of an interlocutory injunction under § 382b EO and of appropriate victim protection institutions (§ 25(2)).
(5) In the documentation concerning the order of a prohibition on entry, regard shall be had not only to the circumstances relevant to the intervention, but also to those which may be of importance for proceedings under § 382b EO.
(6) The order of a prohibition on entry shall be notified to the law enforcement authorities without delay and shall be verified by them within 48 hours. To that end, the law enforcement authorities may call on the services of all institutions and offices that can help to establish the relevant facts. Furthermore, the district administrative authorities, in their capacity as a law enforcement authority, may consult doctors in the public health service. If the law enforcement authorities establish that the conditions for the order of the prohibition on entry are not satisfied, they shall suspend that prohibition against the person concerned without delay; the vulnerable person shall be informed without delay that the prohibition on entry has been suspended; the suspension of the prohibition on entry and the notification of the vulnerable person shall be effected, as far as possible, orally or by telephone by a public law enforcement service agent or in writing by personal delivery. The keys removed pursuant to paragraph 2 shall be handed over to the person concerned upon the suspension of the prohibition on entry and in the case of an application for adoption of an interlocutory injunction under § 382b EO shall be deposited with the court.
(7) Compliance with a prohibition on entry shall be verified at least once during the first three days of its validity by public law enforcement service agents. The prohibition on entry shall end following the expiry of the tenth day after it has been ordered; it shall end in the case of an application for the adoption of an interlocutory injunction made within that period under § 382b EO upon the service of the court's decision to the respondent, but at the latest following the expiry of the twentieth day after the prohibition on entry has been ordered. The court shall notify the law enforcement authorities without delay that an application for adoption of an interlocutory injunction under § 382b EO has been made.
6. The following paragraph 3 shall be added to § 25:
(3) The Federal Minister for the Interior shall be authorised to enter into agreements with proven appropriate victim protection institutions to approach people who are under threat of violence with a view to their counselling and non-financial support (intervention offices). Where such a victim protection institution predominantly serves the counselling and support of women, the contract shall be concluded jointly with the Federal Minister for Women's Affairs and Consumer Protection and, where such an institution predominantly serves the counselling and support of children, jointly with the Federal Minister for the Environment, Youth and Family.'
2. The following subparagraph 8 shall be added to § 56(1):
'8. to appropriate victim protection institutions (§ 25(2)), in so far as this is necessary for the protection of vulnerable people.'
3. § 84(1) shall read:
'(1) Anyone who
1. enters or resides in a danger area contrary to a prohibition adopted by regulation pursuant to § 36(1) or
2. fails to comply with a prohibition on return to the area under § 38a(2) or
3. acts in contravention of a measure adopted by regulation pursuant to § 49(1), failure to comply with which is subject to an administrative penalty, commits an administrative offence and shall be penalised by a fine of up to ATS 5 000, and in the event that that fine is not collectable, by a term of imprisonment of up to two weeks.'
4. The following paragraph 4 shall be added to § 94:
'(4) §§ 38a, 56(1)(8) and 84(1), as amended by BGBl. No 759/1996 shall enter into force on 1 January 1997.'
5.In § 98(2), the expression'of § 47(3)' shall be replaced by the words 'of §§ 38a(5) and 47(3)'.