6. Special issues | Austria | Fighting Domestic Violence

6.1 Battered woman syndrome

6.1.1 Can lawyers present evidence of battered woman syndrome or other domestic abuse as an affirmative defense to crimes that the battered woman has committed? (Note: Battered Woman Syndrome is accepted by courts in certain jurisdictions to show that battered women can use force to defend themselves and sometimes kill their abusers due to abusive and life-threatening situations.)

Battered woman syndrome is not accepted in Austrian jurisdiction. The court will look at the force used to defend oneself, and will determine if it was a life-threatening situation and if adequate force to defend oneself was used.^[77]

6.2 Domestic violence in the workplace

6.2.1 Can courts issue orders to protect employees suffering from domestic violence?

Yes, the court can issue a restraining order to protect the victim. It is generally possible to apply to the district court for a temporary injunction for protection against attacks by the perpetrator.^[78] An interim injunction can ban the offender from any type of contact or from approaching the apartment and the immediate neighborhood, as well as precisely defined places such as the workplace, school and kindergarten of the children.^[79] In addition, the offender will be banned from staying in certain places and contacting the victim.^[80]

6.2.2 Can departure be deemed "for good cause" if related to domestic violence?

There is no "for good cause" departure related to domestic violence, except if the violence was directed against a coworker, employer or employee.

6.2.3 Can family members of domestic violence victims take reasonable leave to help the victim seek treatment or obtain help and services?

There are no specific rights for personal days as a result of domestic violence; however, according to Section 8, paragraph 3 of the Employee Act (Angestelltengesetz), an employee is allowed to take days off for good reason. The flexibility and accommodation offered by an employer in these circumstances will vary depending on the employer and depending on what the employment contract provides for.

6.3 Immigration

6.3.1 Does the law include provisions that are intended to prevent abusers who are citizens or permanent residents from using immigration laws to perpetrate domestic violence against their spouse?

There is nothing in the reviewed materials that suggest that such provisions exist. A legal trap can arise in cases of "divorce, death, illness or domestic violence, when the police is called for assistance, immigrants risk being deported, if they cannot prove their own health insurance and livelihood and therefore not secure their legal situation (which is often not possible due to the restricted access to the labour market)."^[81]

Austria has not signed the UN Convention for the Protection of the Rights of All Migrant Workers and the Members of their Families, and it has not signed the ILO Convention Concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers.^[82]

6.3.2 If battered immigrants cooperate with law enforcement in domestic violence, can they obtain immigration remedies?

There is nothing in the reviewed materials that suggest that cooperation can lead to immigration remedies. However, asylum seekers have a duty to cooperate with the Austrian authorities under the Asylum Act.

Services for migrant women who find themselves victims of violence as well as women who are victims of specific forms of violence that specifically impact migrant communities (such as forced marriage and female genital mutilation) were established over the past few decades in Austria. However, the services are rarely provided in languages other than German and are limited to bigger cities such as Vienna.

6.3.3 Does domestic violence law discuss asylum accessibility?

Yes. Under the Settlement and Residence Act, if an individual has been affected by violence, then a further residence permit must be granted even if the general conditions for a residence permit are not met. Where individuals fall outside of the scope of the Settlement and Residence Act, the Asylum Act offers a residence permit with special protection for cases where the right of residence is required to enable the prosecution of criminal acts. Specifically, this right of residency is provided where a court has imposed an interim injunction for protection against violence in residential dwellings or general protection against violence, and the victim needs further protection.^[83]

Generally, the residence permit will be granted once a justified opinion has been received by the Austrian Federal Office for Immigration and Asylum from the criminal investigators confirming the status of the victim.^[84]

6.4 Armed forces

6.4.1 Can a victim seek a military protective order if the abuser is in active military?

There is nothing in the reviewed materials indicating that a military protective order is available to a victim of domestic violence.

We were unable to locate any information on this relating to Cyprus. However, victims from within the military community can access local civilian support services.

6.5 Child custody and child/spousal support

6.5.1 Do judges follow special rules to determine custody or visitation of children in domestic violence cases?

Yes. Under the Federal Constitutional Act on the Rights of Children, judges have an obligation to consider child welfare above all else. Protecting the child from abuse and/or violence and/or witnessing violence is a key criterion when judges determine custody and visitation rights. If there are concerns about a child's well-being, supervised visitation can be arranged between the child and the noncustodial parent.^[85]

6.5.2 Can the judge consider the testimonies of the other spouse and the children when determining custody?

Yes. Children have a right to be heard by the court in proceedings on custody or rights of contact from 10 years old.^[86] There is nothing in the reviewed materials to suggest that the testimony of the other spouse would not be considered.

6.6 Housing rights of domestic violence victims

6.6.1 Does the law include any barriers to prevent landlords from forcing a tenant to move out because they are victims of domestic violence?

There is nothing in the reviewed materials that prevent landlords from evicting tenants due to domestic violence.

6.6.2 Does the law allow a tenant to terminate his/her lease early due to domestic violence?

There is nothing in the reviewed materials that allow a tenant to terminate a lease early due to domestic violence.

6.6.3 Can an order exclude the abuser from the residence?

Yes. Please see the information in Section 4.1 above on civil protection orders.

6.6.4 Can abusers be forbidden by court orders to alienate or mortgage the property in his/her name if it is the family domicile?

There is nothing in the reviewed materials that suggest such a court order is available.

Fighting Domestic Violence

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