The Monaco lawmaker wanted to set up an effective and responsive system for protecting victims of domestic violence, enabling the President of the Court of First Instance to issue a protection order within twenty-four hours of the case being referred to them.
This procedure enables the victim to obtain a ban on the perpetrator from entering in contact with her/him and appearing and residing in specific places.
It also allows the victim to be authorized to live separately from her/his spouse, and to be granted with the exclusive use of the accommodation. The judge may also precise on who will bear the cost of it.
This being an ex parte procedure, the Judge is extremely cautious in reviewing the protection requests, to avoid any abusive evictions from the matrimonial home.
The Judge must indeed make sure that the measure is proportionate, meaning that victim must be protected without being detrimental to the presumed perpetrator, since the latter is presumed innocent pending the penal decision.
In accordance with case law, a detailed medical certificate and the lodging of a criminal complaint were previously required for a protection order to be granted, one having to corroborate the other.
However, in a recent decision, Monaco Court of Appeal laid down new prerequisites for the protection order to be granted, considering, even though the victim had conclusive medical evidence and did actually lodge a complaint, that:
- No minute of the hearing had been brought to the debate
- The victim did lodge the complaint two days after the medical certificate was issued
- The medical certificate did not include a description of the violence complained of by the victim
- No statement was brought to the debate, although the facts took place in public
By doing so, it seems that Monaco Court has established new and particularly restrictive conditions that are contrary to the spirit of the Law of July 20th, 2011 on the fight against and prevention of specific forms of violence that inserted the article no. 24-1 of the Civil Code, advocating for immediate protection of the victims.
Indeed, the bill recalled that "Domestic violence constitutes a very serious and unacceptable breach to Human rights, freedom, safety and dignity. Usually perpetrated in secrecy, it is our duty, both individual and collective, to break the silence and to implement all the necessary means to eradicate this plague that knows no geographic or age boundaries and that concerns all types of family relationships and all types of social classes (...)".
The Protection Order procedure has nothing to do with bringing the alleged perpetrator to trial but to prevent the recurrence of the alleged facts of violence.
For the time being, this case law is isolated. Therefore, the decisions to come will be determining.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
