One of the important legal mechanisms for responding promptly to violence against women and domestic violence, as well as ensuring the victim’s safety, is a restraining order.
A restraining order is a temporary legal act, but compliance with its requirements is mandatory. Violating a prohibition or obligation imposed by the order may constitute grounds for criminal liability even where the violation is not followed by violence or any other additional consequence.
What Is a Restraining Order?
A restraining order is an act issued by an authorized police officer which, in cases of violence against women or domestic violence, establishes temporary measures for protecting the victim and restricts certain actions of the alleged perpetrator.
The purpose of the order is to prevent possible repeated violence and ensure the victim’s immediate safety. Issuing the order does not mean that a person has been found guilty and does not replace a court judgment in a criminal case. At the same time, the order is a legally binding act that must be complied with throughout its period of validity.
A restraining order may provide for:
- removing the perpetrator from the victim’s residence, regardless of who owns the residence;
- separating the victim and a dependent person from the perpetrator;
- prohibiting the perpetrator from using jointly owned property individually;
- separating the perpetrator from a minor;
- prohibiting the perpetrator from approaching the victim, the victim’s residence, workplace, or other locations;
- prohibiting communication with the victim by telephone, through social media, by other technical means, or through a third person;
- imposing electronic monitoring on the perpetrator;
- restricting or prohibiting the right to carry, possess, use, or purchase a weapon;
- taking other measures necessary to protect the victim’s safety.
A restraining order may specify one, several, or all of the relevant restrictions. Accordingly, the obligations of a particular person must always be determined by the content of the order issued specifically against that person.
The legal grounds for a restraining order are established by the Law of Georgia “On the Prevention of Violence Against Women and/or Domestic Violence, Protection and Assistance of Victims of Violence”.
Who Issues a Restraining Order?
A restraining order is issued by an authorized police officer.
When a report of domestic violence or violence against women is received, a police officer assesses the risk of repeated violence on the basis of a special questionnaire and the specific circumstances of the case. Based on the assessment, a decision is made to issue a restraining order or refuse to issue one.
Where an investigation has been initiated or is ongoing based on the elements of certain offenses specified by law, issuing a restraining order is mandatory.
If sufficient grounds exist to assume that a person’s constitutional rights and freedoms may be violated through physical, psychological, economic, or sexual violence, coercion, or neglect, the police may also issue a restraining order on their own initiative.
A restraining order takes effect immediately upon issuance. It must be delivered or served on the victim and the perpetrator within 24 hours of its issuance.
The perpetrator’s and/or victim’s refusal to sign the restraining order does not prevent it from taking effect. In such a case, the police officer indicates in the order the reason for refusing to sign it or the reason it was impossible to sign it.
For How Long Is a Restraining Order Issued?
A restraining order is issued for a period of no more than one month. Its specific period of validity is stated in the order itself.
Each prohibition and obligation imposed by the order is mandatory from the moment the order takes effect until its period of validity expires, it is cancelled by a court, or its operation is terminated in accordance with the procedure established by law.
Reconciliation between the parties does not automatically cancel the order. If the victim and the perpetrator reconcile, the order may be cancelled only by an appropriate decision of an authorized police officer and only if there is no longer a risk of violence against the victim or another family member.
Accordingly, the victim’s consent, a meeting with the perpetrator, or reconciliation does not by itself give the perpetrator the right to carry out an action prohibited by the order. Until the order is officially cancelled or its period of validity expires, all of its conditions must be fully complied with.
How Is a Restraining Order Challenged?
Both the victim and the person against whom the order was issued have the right to challenge a restraining order.
The order may be challenged within three days of its delivery or service. The claim must be submitted to the relevant court of first instance according to the victim’s place of residence.
The claim must be prepared in writing and must state:
- the claimant’s name, surname, and residential address;
- the factual circumstances of the case;
- information about the victim, the perpetrator, and their relationship;
- a list of evidence;
- a request to cancel the restraining order in full or in part or to amend it;
- the claimant’s signature.
The court of first instance examines the claim within three days of its submission. The court may cancel the order in full or in part or refuse to cancel it.
A decision of the court of first instance may be appealed to the court of appeals within three days of the party being served with the reasoned decision. The court of appeals examines the appeal within seven days. Its decision is final and is not subject to further appeal.
It is particularly important that challenging a restraining order in court, as well as appealing the decision of the court of first instance, does not suspend the operation of the order. Accordingly, until the dispute is resolved, the person remains obliged to comply with every condition stated in the order.
The detailed procedure for challenging the order is established by Article 21¹⁴ of the Administrative Procedure Code of Georgia.
Under What Conditions Does Violation of an Order Give Rise to Criminal Liability?
Liability for violating a restraining order does not arise automatically merely because the order exists. Criminal liability requires proof of the circumstances necessary to establish the elements of the offense.
1. The order must have been issued by an authorized person
There must be a restraining order issued by an authorized police officer which establishes specific prohibitions and obligations.
2. The order must have been in force at the time of the violation
The disputed act must have been committed during the period of validity of the order. An act committed after the order has expired or has been cancelled in accordance with the procedure established by law cannot be classified as a violation of that order.
3. A specific condition stated in the order must have been violated
For liability to arise, it must be established precisely which prohibition or obligation the person violated.
For example, a violation may include:
- approaching the victim;
- going to the victim’s residence or workplace;
- making a telephone call;
- sending a text message;
- contacting the victim through social media;
- communicating through a third person;
- returning to the victim’s residence;
- violating a restriction related to weapons;
- evading electronic monitoring.
However, conduct may be classified as an offense only if the relevant action was actually prohibited by the specific order.
4. The person must have known about the order and its conditions
For liability to arise, it is essential to establish that the person knew about the order issued against them and the restrictions imposed by it.
Personal service of the order and the person’s signature are the most direct evidence of this. However, the absence of personal service does not in every case exclude liability. If other evidence establishes that the person knew both that the order had been issued and what its specific conditions were, criminal liability may still arise even if the restraining order was not personally served on them.
In one case, the Supreme Court of Georgia explained that the absence of personal service did not exclude liability because the evidence established that the convicted person knew both that the order had been issued and what prohibitions had been imposed and what legal consequences would follow from violating them (Case No. 860აპ-25).
On the other hand, if the person was not aware of the content of the order and their knowledge cannot be established by proper evidence, the mental element of the offense may not be proved.
5. The act must have been committed culpably
Criminal liability requires the existence of guilt. The mere presence of a person in a location prohibited by the order, or another objective circumstance, is not always sufficient.
It must be established that the person understood the restriction imposed by the order and knowingly failed to comply with it. If, due to the specific circumstances, the person was unable to understand or control their conduct, the guilt required for liability may be absent.
In the case law of the Supreme Court, an acquittal remained in force in a case where it was established that the person was unconscious at the time of the violation and the prosecution failed to prove their guilt beyond a reasonable doubt (Case No. 92აპ-24).
6. Additional harm is not required for liability
The offense provided for by Article 381¹ of the Criminal Code of Georgia is complete at the moment a requirement or obligation imposed by the order is not complied with.
For criminal liability to arise, the violation does not have to result in new violence, bodily injury, or any other serious consequence. For example, if the order prohibits any communication with the victim, a knowingly made telephone call or sent message may be sufficient to establish liability.
What Penalty Is Prescribed for Violating a Restraining Order?
Under paragraph 1 of Article 381¹ of the Criminal Code of Georgia, failure to comply with the requirements and obligations imposed by a restraining or protective order is punishable by:
- a fine;
- community service from 180 to 240 hours;
- or imprisonment for up to one year.
The court may also impose an additional restriction on rights related to weapons.
If the same act is committed repeatedly, it is punishable by imprisonment for a term of one to three years, with or without a restriction on rights related to weapons.
“Repeated” commission does not refer to a situation in which a person contacts the victim several times. Under the general rule of the Criminal Code, repeated commission of an offense means that a person commits an offense provided for by the same article after having already been convicted of the same offense, where that conviction has not been removed or expunged.
If, while violating the order, the person additionally commits violence, a threat, stalking, bodily injury, or another offense, they will be held liable both for violating the order and for the additional offense committed.
Where failure to comply with the requirements imposed by a restraining order is committed against a family member, the person’s conduct is classified under Articles 11¹ and 381¹ of the Criminal Code of Georgia.
Conclusion
A restraining order takes effect immediately upon issuance and is a legally binding act that must be complied with. Challenging the order does not suspend its operation, and reconciliation between the parties or the victim’s consent does not automatically cancel the imposed prohibitions.
To impose criminal liability for violating the order, it must be established that:
- a valid order issued by an authorized person existed;
- the order contained a specific prohibition or obligation;
- the person violated that particular condition during the order’s period of validity;
- the person knew that the order and the relevant restriction existed;
- the act was committed culpably;
- these circumstances are established by the totality of evidence beyond a reasonable doubt.
In a case concerning a restraining order, it is important to carry out an individual legal assessment of the order’s content, the procedure for its issuance and service, and every circumstance of the alleged violation. Timely legal assistance is necessary both to ensure the safety of the person protected by the order and to protect the rights of the person against whom the order was issued or criminal prosecution was initiated.