An emergency protection order is the order that is issued by the police due to a report of domestic violence independently from a court hearing.[47]
A court restraining order is the order that is issued by the court as a result of civil proceedings.[48]
Emergency protection orders are available but obtaining one is difficult. Court restraining orders are more effective as they are issued by courts for a longer period compared to an emergency protection order.
A restraining order is the order that is issued by the court following a motion by the victim who is subject to criminal proceedings.[49]An emergency protection order can be issued:
- at the request of the victim[50]
- at the initiative of an employee of an authorized police unit based on the results of a risk assessment[51] (If the level of danger is assessed as low or medium, and there are no other circumstances that may affect the level of danger, an emergency protection order against the offender is issued at the discretion of the police unit. If the level of danger is assessed as high, it is obligatory for police officers to issue an emergency protection order against the offender.)[52]
A court restraining order can be petitioned by several persons including: a victim of domestic/gender violence or his/her representative, parents and other legal representatives of a child victim of domestic violence, children's protection service on behalf of a child who has suffered from domestic violence, and a guardian of a person who has suffered domestic violence.
A restraining order can be issued by the court at the request of the subject of criminal proceedings (among others, the victim).Temporary custody of a child applies when it is necessary to immediately appoint a guardian or trustee in the interests of the child.
This applies in exceptional cases, particularly when there is a direct threat to the life and health of a child.[53]An emergency protection order prohibits domestic violence and prohibits direct and indirect contact with a victim. It may contain the following:
- obligation to leave the place of residence (stay) of the victim
- prohibition to enter and/or stay at the place of residence (location) of the victim
- prohibition to contact the victim in any way
A court restraining order may contain the following:
- obligations to leave the place of residence (stay) of the victim
- obligation to remove obstacles preventing the victim from using their personal private property or property that is jointly owned
- restrictions on communication with the victim
- prohibition to approach a certain distance from the place of residence (stay), study, work, other places that the victim frequently visits
- prohibition to search for the victim, either personally or through third parties, if the victim is voluntarily in a place that is not known to the offender
- prohibition to pursue and to communicate with the victim in any way
- prohibition to carry on correspondence, telephone conversations with the victim or to contact the victim through other means of communication personally and through third parties
A restraining order may contain the following:
- prohibition to stay in the place of residence (stay) of the victim
- restriction on communication with the child in the event of domestic violence committed against the child or in the child's presence
- restriction on approaching a certain distance from places where the victim may permanently or temporarily reside, or where the victim temporarily or regularly may be in connection with their work, study, medical treatment or for other reasons
- prohibition of correspondence, telephone conversations with the victim, and other forms of contact whether directly or through third parties
- commitment to the offender or probation program[54]
The protection of the rights and interests of a child victim (including by requesting an emergency protection order and civil protection order) can be carried out by:
- parents and other legal representatives, relatives (grandmother, grandfather, adult brother, sister), stepmother or stepfather, of the child who is a victim of domestic violence, in each case provided they are not the offender
- children's protection service
- a guardian, custody and guardianship agency in the interests of an incapacitated person who has suffered from domestic violence[55]
There are no other types of civil protective orders, e.g., short-term period.
The Ukrainian police now have the power to issue emergency protection orders on the spot, but they are only valid for up to 10 days.[56]Ukrainian police now have the power to issue emergency protection orders on the spot, but they are only valid for up to 10 days.[59]
The court issues court restraining orders for a period of one to six months. These orders may be extended through the courts for up to six months, which means that it is essentially the judge who will issue the restraining order.[60]
The court issues restraining orders for a period of one to three months. It may be extended through the courts for up to 12 months, which means that it's essentially the judge who will issue the restraining order.[61]Law On Preventing and Combating Domestic Violence provides for a Unified State Register of Cases of Domestic Violence and Gender-Based Violence. However, the register has not been created or publicized.
In relation to the number of granted court restraining orders and their measures: pages 1, 35-55 of the Court Considerations on Issuing Restraining or Protection Orders in Cases Of Domestic Violence: International Standards and Overview of Ukrainian National Practice. Please refer to the full text (https://rm.coe.int/restraining-protection-orders-dv-report-ukraine/1680a01299).
State judicial administration information about domestic violence cases in response to a request from "Radio Svoboda": https://www.radiosvoboda.org/a/news-ukraina-domashye-nasylstvo-zasudzheni/31152269.html.A report of domestic violence from a victim is enough to issue an emergency protection order.
A victim must present a motion in written form for issuing a court restraining order. Thus, in addition to the formal requirements — an indication of the name of the court to which the application is being submitted and information about the parties — the application must include: 1) circumstances indicating the need for the court to issue a restraining order; and 2) evidence in support of them (if any). If it is impossible to provide evidence, a motion for its request may be attached to the application.[62] Similarly, the court may request evidence at its own initiative by analyzing the applicant's application or the testimony of the parties.
A victim must present a motion in oral or written form for issuing a restraining order.
For an emergency protection order, no hearing is needed and the presence of the victim is not obligatory.
The case on the issuance of a court restraining order will be considered by a court with the participation of the applicant and persons concerned. Failure of the applicant or persons concerned to attend the hearing will not prevent the judge considering the application for the order, if the judge was duly notified. If the applicant's participation poses a threat of further discrimination or violence against him/her, the case may be heard without his/her participation.[63]
A restraining order can be issued only if the motion of the victim was made in a hearing. However, a representative can also make a motion in a hearing, instead of the victim.
Besides the prohibition on approaching the victim, the Law On Preventing and Combating Domestic Violence provides issuance of temporary placement in a safe place and support services.
The laws provide for a number of protections for victims of gender-based violence: i) support services; ii) establishment of a national hotline (namely "La Strada Ukraine"); iii) establishment of shelters for victims; and iv) establishment of social and psychological centers.[64]Orders can be issued for as long as the real threat exists.
There are no defined time limits for the National Police of Ukraine to issue the emergency protection order.
Courts should make a decision on the issuance of a court restraining order within 72 hours from the filing of the relevant application.[65] However, in practice, this time limit is usually not complied with.[66]There are no other rules in emergencies.
Police may issue an on-the-spot emergency protection order, which cannot last longer than 10 days.[67]A judge can only grant a court restraining order and a restraining order. The only discretion available to them is the inclusion or noninclusion of certain terms of the civil protection orders (please refer to the point 4.1.4 of this analysis).
There no age limits on who can obtain orders.
However, requests for an emergency protection order and civil protection order may be filed only by the child's relatives (grandmother, grandfather, adult brother or sister), stepmother or stepfather of the child, if they are not the offenders, as well as the guardianship and trusteeship body. The representative of the child can request a restraining order.The Law On Preventing and Combating Domestic Violence enables victims to file a civil report, following which they can apply for a protection order or file a civil claim for cost, losses, moral damages and restitution. Such costs can only be recovered under the regular civil provisions.[68]
The law also lists the rights of victims, which include: "free legal aid in accordance with the procedure established by the Law On Free Legal Aid" and "free receipt in accordance with the legislation of social services, medical, social and psychological assistance in accordance with its needs."[69]
Damage caused to the protected person in connection with their participation in criminal and civil proceedings is subject to compensation.[70][71]
Lost wages and profits can be recovered based on regular civil law provisions.[72] General civil rules state that the person whose right is violated has the right to compensation for the income that the person could actually have received under normal circumstances if their right had not been violated.[73]
An individual or legal entity that has caused harm to an individual's health is obliged to reimburse the victim for earnings (income) lost as a result of the loss or decrease in professional or general working capacity.[74]Any costs or restitutions under the common civil provisions can be requested only in separate civil proceedings.
Compensation damage caused to the protected person in connection with their participation in criminal and civil proceedings will be awarded in the same way in which the protection of the victim was implemented.